SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Date of Report: March 10, 1999
- ------------------------------
(Date of earliest event reported)
NationsLink Funding Corporation
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 333-66805 56-1950039
- --------------------------------------------------------------------------------
(State or Other (Commission (I.R.S. Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
Bank of America Corporate Center, 100 North Tryon Street, Charlotte, NC 28255
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (704) 386-2400
<PAGE>
ITEM 5. OTHER EVENTS.
Attached as Exhibit 4 is the Pooling and Servicing Agreement (as
defined below) for the NationsLink Funding Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1999-1 (the "Certificates"). On February 23,
1999, NationsLink Funding Corporation (the "Company") caused the issuance,
pursuant to a Pooling and Servicing Agreement, dated as of February 1, 1999 (the
"Pooling and Servicing Agreement"), by and among the Company, as depositor,
NationsBank, N.A., as mortgage loan seller, Banc One Capital Markets, LLC, as
master servicer and as special servicer, and Norwest Bank Minnesota, National
Association, as trustee and REMIC Administrator, of the Certificates, issued in
fourteen classes. The Class A-1, Class A-2, Class X, Class B, Class C, Class D,
and Class E Certificates (the "Publicly Offered Certificates"), with an
aggregate principal balance as of February 1, 1999 (the "Cut-Off Date") of
$1,084,654,074, were sold to NationsBanc Montgomery Securities LLC ("NationsBanc
Montgomery") pursuant to an Underwriting Agreement, dated February 17, 1999, by
and between NationsBanc Montgomery, as underwriter, and the Company.
Attached as Exhibit 8 is the opinion of Cadwalader, Wickersham & Taft,
special tax counsel to the Company, regarding tax matters (the "Tax Matters
Opinion"), provided in connection with the issuance of the Certificates.
Capitalized terms used herein and not defined herein have the same
meanings ascribed to such terms in the Pooling and Servicing Agreement.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits
Exhibit 4 Pooling and Servicing Agreement
Exhibit 8 Tax Matters Opinion
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on behalf of the
Registrant by the undersigned thereunto duly authorized.
NATIONSLINK FUNDING CORPORATION
By: /s/ James E. Naumann
----------------------------
Name: James E. Naumann
Title: Senior Vice President
Date: March 10, 1999
<PAGE>
Exhibit Index
-------------
Item 601(a) of Regulation
S-K Exhibit No. Description
- ------------------------- -----------
4 Pooling and Servicing Agreement
8 Tax Matters Opinion
================================================================================
NATIONSLINK FUNDING CORPORATION,
Depositor,
NATIONSBANK, N.A.,
Mortgage Loan Seller,
BANC ONE MORTGAGE CAPITAL MARKETS, LLC,
Master Servicer and Special Servicer,
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Trustee and REMIC Administrator,
---------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of February 1, 1999
---------------------------------
$1,222,145,439
Commercial Mortgage Pass-Through Certificates
Series 1999-1
================================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT
OF THE MORTGAGE POOL AND THE CERTIFICATES
1.01 Defined Terms.............................................................
1.02 Certain Calculations in Respect of the Mortgage Pool......................
1.03 Incorporation of Preliminary Statement....................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
2.01 Conveyance of Mortgage Loans..............................................
2.02 Acceptance of REMIC I by Trustee..........................................
2.03 Mortgage Loan Seller's Repurchase of Mortgage Loans
for Document Defects and Certain Breaches of
Representations and Warranties.........................................
2.04 Representations and Warranties of the Depositor...........................
2.05 Representations and Warranties of the Mortgage Loan Seller................
2.06 Representations and Warranties of the Master Servicer.....................
2.07 Representations and Warranties of the Special Servicer....................
2.08 Representations and Warranties of the Trustee and the REMIC Administrator.
2.09 Issuance of the Class R-I Certificates;
Creation of the REMIC I Regular Interests..............................
2.10 Conveyance of REMIC I Regular Interests;
Acceptance of REMIC II by the Trustee..................................
2.11 Issuance of the REMIC II Certificates.....................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
3.01 Administration of the Mortgage Loans......................................
3.02 Collection of Mortgage Loan Payments......................................
3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Servicing Advances; Reserve Accounts...............
3.04 Certificate Account, the Distribution Account and the REMIC II
Distribution Account...................................................
3.05 Permitted Withdrawals From the Certificate Account and
the Distribution Account...............................................
3.06 Investment of Funds in the Certificate Account, the Interest Reserve
Account and the REO Account............................................
3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage..................................................
3.08 Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Subordinate Financing..................................................
3.09 Realization Upon Defaulted Mortgage Loans.................................
3.10 Trustee to Cooperate; Release of Mortgage Files...........................
3.11 Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
Regarding Back-up Servicing Advances...................................
3.12 Inspections; Collection of Financial Statements...........................
3.13 Annual Statement as to Compliance.........................................
3.14 Reports by Independent Public Accountants.................................
3.15 Access to Certain Information.............................................
3.16 Title to REO Property; REO Account........................................
3.17 Management of REO Property................................................
3.18 Sale of Mortgage Loans and REO Properties.................................
3.19 Additional Obligations of the Master Servicer and the Special Servicer....
3.20 Modifications, Waivers, Amendments and Consents...........................
3.21 Transfer of Servicing Between Master Servicer and Special Servicer;
Record Keeping; Asset Status Report....................................
3.22 Sub-Servicing Agreements..................................................
3.23 Designation of Special Servicer by the Majority Certificateholder
of the Controlling Class...............................................
3.24 Confidentiality...........................................................
3.25 No Solicitation of Prepayments............................................
3.26 Certain Matters with Respect to Loans Permitting Defeasance,
Franchise Loans and Certain Loans Permitting Additional Debt...........
3.27 Participant Retained Interest.............................................
3.28 Year 2000 Compliance......................................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
4.01 Distributions on the Certificates.........................................
4.02 Statements to Certificateholders; Certain Reports by the
Master Servicer and the Special Servicer...............................
4.03 P&I Advances..............................................................
4.04 Allocation of Realized Losses and Additional Trust Fund...................
4.05 Interest Reserve Account..................................................
ARTICLE V
THE CERTIFICATES
5.01 The Certificates..........................................................
5.02 Registration of Transfer and Exchange of Certificates.....................
5.03 Book-Entry Certificates...................................................
5.04 Mutilated, Destroyed, Lost or Stolen Certificates.........................
5.05 Persons Deemed Owners.....................................................
5.06 Certification by Certificate Owners.......................................
5.07 Regarding the Identification of Certain Certificateholders................
ARTICLE VI
THE DEPOSITOR, THE MORTGAGE LOAN SELLER,
THE MASTER SERVICER, THE SPECIAL SERVICER AND
THE REMIC ADMINISTRATOR
6.01 Liability of the Depositor, the Mortgage Loan Seller,
the Master Servicer, the Special Servicer and the REMIC Administrator..
6.02 Merger, Consolidation or Conversion of the Depositor,
the Mortgage Loan Seller, the Master Servicer, the Special
Servicer or the REMIC Administrator....................................
6.03 Limitation on Liability of the Depositor, the Master Servicer,
the Special Servicer, the REMIC Administrator and Others...............
6.04 Master Servicer, Special Servicer and REMIC Administrator Not to Resign...
6.05 Rights of the Depositor and the Trustee in Respect of the Master
Servicer, the Special Servicer and the REMIC Administrator.............
ARTICLE VII
DEFAULT
7.01 Events of Default.........................................................
7.02 Trustee to Act; Appointment of Successor..................................
7.03 Notification to Certificateholders........................................
7.04 Waiver of Events of Default...............................................
7.05 Additional Remedies of Trustee Upon Event of Default......................
ARTICLE VIII
CONCERNING THE TRUSTEE
8.01 Duties of Trustee.........................................................
8.02 Certain Matters Affecting the Trustee.....................................
8.03 Trustee Not Liable for Validity or Sufficiency of Certificates or
Mortgage Loans.........................................................
8.04 Trustee May Own Certificates..............................................
8.05 Fees of Trustee; Indemnification of Trustee...............................
8.06 Eligibility Requirements for Trustee......................................
8.07 Resignation and Removal of the Trustee....................................
8.08 Successor Trustee.........................................................
8.09 Merger or Consolidation of Trustee........................................
8.10 Appointment of Co-Trustee or Separate Trustee.............................
8.11 Appointment of Custodians.................................................
8.12 Access to Certain Information.............................................
8.13 Filings with the Securities and Exchange Commission.......................
8.14 Year 2000 Compliance......................................................
ARTICLE IX
TERMINATION
9.01 Termination Upon Repurchase or Liquidation of All Mortgage Loans..........
9.02 Additional Termination Requirements.......................................
ARTICLE X
ADDITIONAL REMIC PROVISIONS
10.01 REMIC Administration.....................................................
10.02 Depositor, Master Servicer, Special Servicer and Trustee to Cooperate
with REMIC Administrator...............................................
10.03 Fees of the REMIC Administrator..........................................
10.04 Use of Agents............................................................
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.01 Amendment................................................................
11.02 Recordation of Agreement; Counterparts...................................
11.03 Limitation on Rights of Certificateholders...............................
11.04 Governing Law............................................................
11.05 Notices..................................................................
11.06 Severability of Provisions...............................................
11.07 Successors and Assigns; Beneficiaries....................................
11.08 Article and Section Headings.............................................
11.09 Notices to and from Rating Agencies......................................
11.10 Requests for Information; Standing Requests..............................
<PAGE>
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-2 Certificate
EXHIBIT A-3 Form of Class X Certificate
EXHIBIT A-4 Form of Class B Certificate
EXHIBIT A-5 Form of Class C Certificate
EXHIBIT A-6 Form of Class D Certificate
EXHIBIT A-7 Form of Class E Certificate
EXHIBIT A-8 Form of Class F Certificate
EXHIBIT A-9 Form of Class G Certificate
EXHIBIT A-10 Form of Class H Certificate
EXHIBIT A-11 Form of Class J Certificate
EXHIBIT A-12 Form of Class K Certificate
EXHIBIT A-13 Form of Class R-I Certificate
EXHIBIT A-14 Form of Class R-II Certificate
EXHIBIT B Form of Investment Representation Letter
EXHIBIT C-1 Form of Transfer Affidavit and Agreement Pursuant
to Section 5.02(d)(i)(B)
EXHIBIT C-2 Form of Transferor Certificate Pursuant to
Section 5.02(d)(i)(D)
EXHIBIT D Request for Release
EXHIBIT E Form of REO Status Report
EXHIBIT F Form of ERISA Representation Letter
EXHIBIT G Form of Certificateholder Confirmation Certificate
EXHIBIT H Form of Prospective Purchaser Certificate
EXHIBIT I Form of Interim Custodial Certification
EXHIBIT J Form of Final Custodial Certification
EXHIBIT K Form of Operating Statement Analysis Report
SCHEDULE I Mortgage Loan Schedule
SCHEDULE II Sub-Servicing Agreements in Effect as of the
Closing Date
SCHEDULE III Schedule of Certain Insurance Exceptions
SCHEDULE IV Schedule of Certain Environmental Matters
SCHEDULE V Schedule of Mortgage Loans Permitting Certain Releases
SCHEDULE VI Schedule of Mortgage Loans Permitting Future Subordinate
Liens on Mortgaged Properties
SCHEDULE VII Schedule of Exceptions from Health Care Loan
Document Provisions
SCHEDULE VIII Schedule of Exceptions to Mortgage File Delivery
<PAGE>
This Pooling and Servicing Agreement (this "Agreement"), is
dated and effective as of February 1, 1999, among NATIONSLINK FUNDING
CORPORATION, as Depositor, NATIONSBANK, N.A., as Mortgage Loan Seller, BANC ONE
MORTGAGE CAPITAL MARKETS, LLC, as Master Servicer and as Special Servicer, and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee and as REMIC
Administrator.
PRELIMINARY STATEMENT:
The Depositor intends to sell Certificates, to be issued
hereunder in multiple Classes, which in the aggregate will evidence the entire
beneficial ownership interest in the Trust to be created hereunder.
As provided herein, the Trustee will elect that the Trust Fund
be treated for federal income tax purposes as two separate real estate mortgage
investment conduits ("REMIC I" and the "REMIC II," respectively). The Class A-1,
Class A-2, Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class
H, Class J and Class K Certificates constitute "regular interests" in REMIC II,
and the Class R-II Certificates constitute the sole class of "residual interest"
in REMIC II for purposes of the REMIC Provisions. The Class LA-1, Class LA-2,
Class LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH, Class LJ
and Class LK Uncertificated Interests constitute "regular interests" in REMIC I
and the Class R-I Certificates constitute the sole class of "residual interest"
in REMIC I created hereunder for purposes of the REMIC Provisions.
The following table sets forth the designation, the
Pass-Through Rate, and the Initial Class Principal Balance for each of the
Classes of REMIC II Regular Certificates:
Initial Class
Designation Pass-Through Rate Principal Balance
- ----------- ----------------- -----------------
Class A-1 6.042% per annum $198,904,170
Class A-2 6.316% per annum $659,653,000
Class X Variable(1) N/A(2)
Class B 6.422% per annum(3) $64,162,635
Class C 6.571% per annum(3) $61,107,271
Class D 7.100% per annum(3) $67,217,999
Class E 7.100% per annum(3) $33,608,999
Class F 7.100% per annum(3) $51,941,181
Class G 6.000% per annum(3) $9,166,090
Class H 6.000% per annum(3) $30,553,635
Class J 6.000% per annum(3) $15,276,817
Class K 6.000% per annum(3) $30,553,642
- ---------------------------------
(1) Calculated in accordance with the definition of "Class X Pass-Through
Rate".
(2) The Class X Certificates will not have a Class Principal Balance;
rather, such Class of Certificates will accrue interest as provided
herein on the Class X Notional Amount.
(3) The Pass-Through Rates for the Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J and Class K Certificates for each
Distribution Date shall not exceed the Weighted Average Adjusted Net
Mortgage Rate for such Distribution Date.
The following table sets forth the designation, the initial
Uncertificated Principal Balances and per annum rates of interest for the REMIC
I Regular Interests:
REMIC I
Regular Interest REMIC I Initial Uncertificated
Designation Remittance Rate Principal Balance
- ----------- --------------- -----------------
Class LA-1 (1) $198,904,170
Class LA-2 (1) $659,653,000
Class LB (1) $64,162,635
Class LC (1) $61,107,271
Class LD (1) $67,217,999
Class LE (1) $33,608,999
Class LF (1) $51,941,181
Class LG (1) $9,166,090
Class LH (1) $30,553,635
Class LJ (1) $15,276,817
Class LK (1) $30,553,642
- ---------------------------------
(1) The REMIC I Remittance Rate for each Class of REMIC I
Regular Interests is the Weighted Average Adjusted Net Mortgage Rate.
The Class R-I and Class R-II Certificates will be Residual
Certificates bearing no Pass-Through Rate and having no initial Certificate
Principal Balances.
In consideration of the mutual agreements herein contained,
the Depositor, the Mortgage Loan Seller, the Master Servicer, the Special
Servicer, the Trustee and the REMIC Administrator agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
AND THE CERTIFICATES
SECTION 1.01 Defined Terms
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"30/360 Basis": As defined in clause (iii) of the definition
of "Mortgage Loan Schedule".
"Accrued Certificate Interest": With respect to any Class of
REMIC II Regular Certificates, for any Distribution Date, one month's interest
(calculated on the basis of a 360-day year consisting of twelve 30-day months)
at the Pass-Through Rate applicable to such Class of Certificates for such
Distribution Date, accrued on the related Class Principal Balance or Class
Notional Amount, as the case may be, of such Class of Certificates outstanding
immediately prior to such Distribution Date. The Accrued Certificate Interest in
respect of any Class of REMIC II Regular Certificates for any Distribution Date
shall be deemed to have accrued during the applicable Interest Accrual Period.
"Actual/360 Basis": As defined in clause (iii) of the
definition of "Mortgage Loan Schedule".
"Additional Interest": With respect to any Hyper-Amortization
Loan after its Anticipated Repayment Date, all interest accrued thereon at the
Excess Interest Rate, the payment of which interest shall, under the terms of
such Mortgage Loan, be deferred until all interest accrued at the Mortgage Rate
(net of the Excess Interest Rate) and outstanding principal has been paid,
together with all interest, if any, accrued at the related Mortgage Rate on such
deferred interest.
"Additional Trust Fund Expense": Any expense incurred or
shortfall experienced with respect to the Trust Fund and not otherwise included
in the calculation of a Realized Loss, that would result in the Regular
Certificateholders' receiving less than the full amount of principal and/or
interest to which they are entitled on any Distribution Date.
"Adjusted Net Mortgage Rate": With respect to any Mortgage
Loan or REO Loan, for any Distribution Date, the annualized rate at which
interest would have to accrue thereon on the basis of a 360-day year consisting
of twelve 30-day months (a "30/360 basis") during the most recently ended
calendar month in order to produce the actual amount of interest accrued (or, if
such Mortgage Loan or REO Loan, as the case may be, is prepaid, in whole or in
part, or otherwise liquidated during such calendar month, that otherwise would
have accrued) in respect of such Mortgage Loan or REO Loan, as the case may be,
at the related Net Mortgage Rate in effect for such Mortgage Loan or REO Loan
during such calendar month (or, in the case of a Hyper-Amortization Loan after
its Anticipated Repayment Date, if such rate is less, the related Net Mortgage
Rate in effect for such Mortgage Loan immediately prior to its Anticipated
Repayment Date). Such rate shall be calculated by multiplying (i) the Net
Mortgage Rate by (ii) the actual number of days of accrued interest for the
related period for such Mortgage Loan, divided by 30.
"Administrative Fee Rate": With respect to each Mortgage Loan
and REO Loan, as specified in the Mortgage Loan Schedule, the sum of the related
Master Servicing Fee Rate and the Trustee Fee Rate (less, in the case of the
Mortgage Loan secured by the Mortgaged Property identified on the Mortgage Loan
Schedule as "Summit Shopping Center", Participant Retained Interest).
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": Interest accrued on any Advance at the
Reimbursement Rate and payable to the Master Servicer (or any Sub-Servicer), the
Special Servicer or the Trustee, as the case may be, all in accordance with
Section 3.11(f) or Section 4.03(d), as applicable.
"Adverse REMIC Event": With respect to each of REMIC I and
REMIC II, either (i) the endangerment of the status of such REMIC as a REMIC or
(ii), except as permitted by Section 3.17(a), the imposition of a tax upon such
REMIC or any of its assets or transactions (including, without limitation, the
tax on prohibited transactions as defined in Section 860F(a)(2) of the Code and
the tax on certain contributions set forth in Section 860G(d) of the Code).
"Affiliate": With respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have the meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement, together
with all amendments hereof and supplements hereto.
"Air Liquide Mechanics' Lien": As defined in Section
2.05(c)(xxii).
"Air Liquide Mortgage Loan": As defined in Section
2.05(c)(xxii).
"Anticipated Repayment Date": With respect to any
Hyper-Amortization Loan, the date specified on the related Mortgage Note, as of
which Additional Interest shall begin to accrue on such Mortgage Loan, which
date is prior to the Stated Maturity Date for such Mortgage Loan.
"Applicable State Law": For purposes of Article X, the
Applicable State Law shall be (a) the laws of the State of New York, (b) the
laws of the states in which the Corporate Trust Office of the Trustee and the
Primary Servicing Offices of the Master Servicer and the Special Servicer are
located, (c) the laws of the states in which any Mortgage Loan documents are
held and/or any REO Properties are located, (d) such other state and local law
whose applicability shall have been brought to the attention of the REMIC
Administrator by either (i) an Opinion of Counsel delivered to it or (ii)
written notice from the appropriate taxing authority as to the applicability of
such state law, and (e) such other state or local law as to which the REMIC
Administrator has actual knowledge of applicability.
"Appraisal": With respect to any Mortgaged Property or REO
Property as to which an appraisal is required to be performed pursuant to the
terms of this Agreement, a narrative appraisal complying with USPAP (or, in the
case of Mortgage Loans and REO Loans with a Stated Principal Balance as of the
date of such appraisal of $2,000,000 or less, a limited appraisal and a summary
report) that indicates the "market value" of the subject property, as defined in
12 C.F.R. ss.225.62(g), and is conducted by a Qualified Appraiser (or by the
Special Servicer, in the case of a limited appraisal and summary report with
respect to a Mortgage Loan or an REO Loan with a Stated Principal Balance as of
the date of such appraisal of $2,000,000 or less).
"Appraisal Reduction Amount": With respect to any Required
Appraisal Loan, an amount (calculated as of the Determination Date immediately
following the later of (a) the date on which the most recent Appraisal that
meets the requirements of Section 3.19(b) in respect of such Required Appraisal
Loan, was obtained by the Master Servicer or the Special Servicer, as the case
may be, and (b) the earliest of the relevant dates in respect of such Required
Appraisal Loan specified in the first sentence of Section 3.19(b) hereof) equal
to the excess, if any, of (x) the sum of (i) the Stated Principal Balance of
such Required Appraisal Loan, (ii) to the extent not previously advanced by or
on behalf of the Master Servicer or the Trustee, all accrued and unpaid interest
(excluding, in the case of a Hyper-Amortization Loan after its Anticipated
Repayment Date, Additional Interest) on such Required Appraisal Loan through the
most recent Due Date prior to such Determination Date at a per annum rate equal
to the sum of the related Net Mortgage Rate and the Trustee Fee Rate, (iii) all
accrued but unpaid Master Servicing Fees and Special Servicing Fees in respect
of such Required Appraisal Loan, (iv) all related unreimbursed Advances made by
or on behalf of the Master Servicer, the Special Servicer or the Trustee in
respect of such Required Appraisal Loan, together with all unpaid Advance
Interest accrued on such Advances, and (v) all currently due but unpaid real
estate taxes and assessments, insurance premiums and, if applicable, ground
rents in respect of the related Mortgaged Property or REO Property (net of any
Escrow Payments or other reserves held by the Master Servicer or the Special
Servicer with respect to any such item), over (y) 90% of an amount equal to (i)
the Appraised Value of the related Mortgaged Property or REO Property, as
applicable, as determined by the most recent relevant Appraisal acceptable for
purposes of Section 3.19(b) hereof, net of (ii) the amount of any liens on such
property (other than in respect of items described in clause (x)(v) above) that
are prior to the lien of the Required Appraisal Loan. Notwithstanding the
foregoing, if an Appraisal is required to be obtained pursuant to Section
3.19(b) but has not been received within the 60-day period contemplated by such
section, then until the date such Appraisal is obtained the "Appraisal Reduction
Amount" for the subject Required Appraisal Loan will be deemed to equal 30% of
the Stated Principal Balance of such Required Appraisal Loan; provided that upon
receipt of an Appraisal acceptable for purposes of Section 3.19(b) hereof, the
Appraisal Reduction Amount for such Required Appraisal Loan will be recalculated
in accordance with the preceding sentence.
"Appraised Value": As of any date of determination, the
appraised value of a Mortgaged Property based upon the most recent Appraisal
obtained pursuant to this Agreement.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar document or
instrument executed by the Mortgagor, assigning to the mortgagee all of the
income, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of such Mortgaged Property, in the form which
was duly executed, acknowledged and delivered, as amended, modified, renewed or
extended through the date hereof and from time to time hereafter.
"Assumed Final Distribution Date": As defined in Section
4.01(c).
"Assumed Monthly Payment": With respect to any Balloon
Mortgage Loan for its Stated Maturity Date (provided that such Mortgage Loan has
not been paid in full, and no other Liquidation Event has occurred in respect
thereof, on or before the end of the Collection Period in which such Stated
Maturity Date occurs) and for any subsequent Due Date therefor as of which such
Mortgage Loan remains outstanding and part of the Trust Fund, if no Monthly
Payment (other than a delinquent Balloon Payment) is due for such Due Date, the
scheduled monthly payment of principal and/or interest deemed to be due in
respect thereof on such Due Date equal to the amount that would have been due in
respect of such Mortgage Loan on such Due Date if it had been required to
continue to accrue interest (exclusive, in the case of a Hyper-Amortization Loan
after its Anticipated Repayment Date, of Additional Interest) in accordance with
its terms, and to pay principal in accordance with the amortization schedule (if
any), in effect immediately prior to, and without regard to the occurrence of,
its most recent scheduled maturity date (as such terms and amortization schedule
may have been modified, and such maturity date may have been extended, in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section
3.20). With respect to any REO Loan, for any Due Date therefor as of which the
related REO Property remains part of the Trust Fund, the scheduled monthly
payment of principal and/or interest deemed to be due in respect thereof on such
Due Date equal to the Monthly Payment that was due (or, in the case of a Balloon
Mortgage Loan described in the preceding sentence of this definition, the
Assumed Monthly Payment that was deemed due) in respect of the related Mortgage
Loan on the last Due Date prior to its becoming an REO Loan.
"Available Distribution Amount": With respect to any
Distribution Date, an amount equal to (a) the balance on deposit in the
Distribution Account as of 11:30 a.m. (New York City time) on such Distribution
Date (or such later time on such date as of which distributions are made on the
Certificates), including, without limitation, if and to the extent on deposit
therein as of such time, the Master Servicer Remittance Amount for the related
Master Servicer Remittance Date, any P&I Advances made by the Master Servicer or
the Trustee to cover uncollected Monthly Payments due and/or Assumed Monthly
Payments deemed due during the related Collection Period, and any payments made
by the Master Servicer to cover Prepayment Interest Shortfalls incurred during
the related Collection Period, any interest or other income earned on funds in
(and subsequently posted to) the Interest Reserve Account and, for the
Distribution Date occurring in each March, the related Withheld Amounts remitted
to the Certificate Account pursuant to Section 4.05, net of (b) any portion of
the amounts described in clause (a) of this definition that represents one or
more of the following: (i) collected Monthly Payments that are due on a Due Date
following the end of the related Collection Period, (ii) any payments of
principal (including, without limitation, Principal Prepayments) and interest,
Liquidation Proceeds and Insurance Proceeds received after the end of the
related Collection Period, (iii) Prepayment Premiums, (iv) any amounts payable
or reimbursable to any Person from the Distribution Account pursuant to any of
clauses (ii) through (vi) of Section 3.05(b), (v) any amounts deposited in the
Distribution Account in error, and (vi) with respect to each Mortgage Loan which
accrues interest on an Actual/360 Basis and any Distribution Date relating to
the one month period preceding the Distribution Date in each February (and in
any January of a year which is not a leap year), an amount equal to the related
Withheld Amount pursuant to Section 4.05; provided that the Available
Distribution Amount for the Final Distribution Date shall be calculated without
regard to clauses (b)(i), (b)(ii) and (b)(vi) of this definition.
"Balloon Mortgage Loan": Any Mortgage Loan that by its
original terms or by virtue of any modification entered into as of the Closing
Date provides for an amortization schedule extending beyond its Stated Maturity
Date and as to which, in accordance with such terms, the Monthly Payment due on
its Stated Maturity Date is at least two times larger than the Monthly Payment
due on the Due Date next preceding its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan
as of any date of determination, the Monthly Payment payable on the Stated
Maturity Date of such Mortgage Loan.
"Banc One": Banc One Mortgage Capital Markets, LLC, or its
successor in interest.
"Bank": As defined in Section 2.08.
"Bankruptcy Code": The federal Bankruptcy Code, as amended
from time to time (Title 11 of the United States Code).
"Base Prospectus": That certain prospectus dated February 17,
1999, relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Book-Entry Certificate": Any Certificate registered in the
name of the Depository or its nominee.
"Business Day": Any day other than a Saturday, a Sunday or a
day on which banking institutions in New York, New York, Minneapolis, Minnesota
and the cities in which the Primary Servicing Offices of the Master Servicer and
Special Servicer and the Corporate Trust Office of the Trustee are located, are
authorized or obligated by law or executive order to remain closed.
"Cabaret Center Parking Ground Lease": As defined in Section
2.05(c)(xlix)(D).
"CERCLA": The Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 1999-1 as executed by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Account": The segregated account or accounts
created and maintained by the Master Servicer pursuant to Section 3.04(a) on
behalf of the Trustee in trust for Certificateholders, which shall be entitled
"Banc One Mortgage Capital Markets, LLC, as Master Servicer, in trust for the
registered holders of NationsLink Funding Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1999-1, Certificate Account".
"Certificate Factor": With respect to any Class of REMIC II
Regular Certificates, as of any date of determination, a fraction, expressed as
a decimal carried to eight places, the numerator of which is the then related
Class Principal Balance or Class Notional Amount, as the case may be, and the
denominator of which is the related Initial Class Principal Balance or Initial
Class Notional Amount, as the case may be.
"Certificate Notional Amount": With respect to any Class X
Certificate, the hypothetical or notional principal amount on which such
Certificate accrues interest, which, as of any date of determination, is equal
to the product of (a) the Percentage Interest evidenced by such Certificate,
multiplied by (b) the then Class X Notional Amount.
"Certificate Owner": With respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Certificate as reflected on the
books of the Depository or on the books of a Depository Participant or on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent.
"Certificate Principal Balance": With respect to any
Sequential Pay Certificate, as of any date of determination, the then
outstanding principal amount of such Certificate equal to the product of (a) the
Percentage Interest evidenced by such Certificate, multiplied by (b) the then
Class Principal Balance of the Class of Certificates to which such Certificate
belongs.
"Certificate Register" and "Certificate Registrar": The
register maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided that solely for
the purposes of giving any consent, approval or waiver pursuant to this
Agreement, any Certificate registered in the name of the Depositor, the Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the REMIC Administrator
or the Trustee or any Affiliate of any of them shall be deemed not to be
outstanding, and the Voting Rights to which any of them is entitled shall not be
taken into account in determining whether the requisite percentage of Voting
Rights necessary to effect any such consent, approval or waiver has been
obtained, except as otherwise provided in Sections 7.04 and 11.01 or except in
connection with the Controlling Class exercising its rights under Section 3.23,
or unless such Persons collectively own an entire Class of Certificates and only
the Holders of such Class of Certificates are entitled to grant such consent,
approval or waiver. The Certificate Registrar shall be entitled to request and
rely upon a certificate of the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer or, if other than the Trustee, the REMIC
Administrator, as the case may be, in determining whether or not a Certificate
is registered in the name of an Affiliate of such Person. All references herein
to "Holders" or "Certificateholders" shall reflect the rights of Certificate
Owners as they may indirectly exercise such rights through the Depository and
the Depository Participants, except as otherwise specified herein; provided,
however, that the parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Certificateholder Reports": As defined in Section 4.02(a).
"Class": Collectively, all of the Certificates or REMIC I
Regular Interests bearing the same alphabetical and, if applicable, numerical
Class designation.
"Class A Certificate": Any one of the Class A-1 or Class A-2
Certificates.
"Class A-1 Certificate": Any one of the Certificates with a
"Class A-1" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class A-1 Component": With respect to the Class X
Certificates, at any date of determination, that portion of the Class X Notional
Amount equal to the Certificate Principal Balance of the Class A-1 Certificates.
"Class A-1 Component Pass-Through Rate": A per annum rate
equal to the Weighted Average Adjusted Net Mortgage Rate minus the Class A-1
Pass-Through Rate.
"Class A-1 Pass-Through Rate": A per annum rate equal to
6.042%.
"Class A-2 Certificate": Any one of the Certificates with a
"Class A-2" designation on the face thereof, substantially in the form of
Exhibit A-2 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class A-2 Component": With respect to the Class X
Certificates at any date of determination, that portion of the Class X Notional
Amount equal to the Certificate Principal Balance of the Class A-2 Certificates.
"Class A-2 Component Pass-Through Rate": A per annum rate
equal to the Weighted Average Adjusted Net Mortgage Rate minus the Class A-2
Pass-Through Rate.
"Class A-2 Pass-Through Rate": A per annum rate equal to
6.316%.
"Class B Certificate": Any one of the Certificates with a
"Class B" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class B Component": With respect to the Class X Certificates,
at any date of determination, that portion of the Class X Notional Amount equal
to the Certificate Principal Balance of the Class B Certificates.
"Class B Component Pass-Through Rate": A per annum rate equal
to the Weighted Average Adjusted Net Mortgage Rate minus the Class B
Pass-Through Rate.
"Class B Pass-Through Rate": A per annum rate equal to 6.422%;
provided, however, such rate shall not exceed the Weighted Average Adjusted Net
Mortgage Rate for the related Distribution Date.
"Class C Certificate": Any one of the Certificates with a
"Class C" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class C Component": With respect to the Class X Certificates,
at any date of determination, that portion of the Class X Notional Amount equal
to the Certificate Principal Balance of the Class C Certificates.
"Class C Component Pass-Through Rate": A per annum rate equal
to the Weighted Average Adjusted Net Mortgage Rate minus the Class C
Pass-Through Rate.
"Class C Pass-Through Rate": A per annum rate equal to 6.571%;
provided, however, such rate shall not exceed the Weighted Average Adjusted Net
Mortgage Rate for the related Distribution Date.
"Class D Certificate": Any one of the Certificates with a
"Class D" designation on the face thereof, substantially in the form of Exhibit
A-6 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class D Component": With respect to the Class X Certificates,
at any date of determination, that portion of the Class X Notional Amount equal
to the Certificate Principal Balance of the Class D Certificates.
"Class D Component Pass-Through Rate": A per annum rate equal
to the Weighted Average Adjusted Net Mortgage Rate minus the Class D
Pass-Through Rate.
"Class D Pass-Through Rate": A per annum rate equal to 7.100%;
provided, however, such rate shall not exceed the Weighted Average Adjusted Net
Mortgage Rate for the related Distribution Date.
"Class E Certificate": Any one of the Certificates with a
"Class E" designation on the face thereof, substantially in the form of Exhibit
A-7 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class E Component": With respect to the Class X Certificates,
at any date of determination, that portion of the Class X Notional Amount equal
to the Certificate Principal Balance of the Class E Certificates.
"Class E Component Pass-Through Rate": A per annum rate equal
to the Weighted Average Adjusted Net Mortgage Rate minus the Class E
Pass-Through Rate.
"Class E Pass-Through Rate": A per annum rate equal to 7.100%;
provided, however, such rate shall not exceed the Weighted Average Adjusted Net
Mortgage Rate for the related Distribution Date.
"Class F Certificate": Any one of the Certificates with a
"Class F" designation on the face thereof, substantially in the form of Exhibit
A-8 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class F Component": With respect to the Class X Certificates,
at any date of determination, that portion of the Class X Notional Amount equal
to the Certificate Principal Balance of the Class F Certificates.
"Class F Component Pass-Through Rate": A per annum rate equal
to the Weighted Average Adjusted Net Mortgage Rate minus the Class F
Pass-Through Rate.
"Class F Pass-Through Rate": A per annum rate equal to 7.100%;
provided, however, such rate shall not exceed the Weighted Average Adjusted Net
Mortgage Rate for the related Distribution Date.
"Class G Certificate": Any one of the Certificates with a
"Class G" designation on the face thereof, substantially in the form of Exhibit
A-9 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class G Component": With respect to the Class X Certificates,
at any date of determination, that portion of the Class X Notional Amount equal
to the Certificate Principal Balance of the Class G Certificates.
"Class G Component Pass-Through Rate": A per annum rate equal
to the Weighted Average Adjusted Net Mortgage Rate minus the Class G
Pass-Through Rate.
"Class G Pass-Through Rate": A per annum rate equal to 6.000%;
provided, however, such rate shall not exceed the Weighted Average Adjusted Net
Mortgage Rate for the related Distribution Date.
"Class H Certificate": Any one of the Certificates with a
"Class H" designation on the face thereof, substantially in the form of Exhibit
A-10 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class H Component": With respect to the Class X Certificates,
at any date of determination, that portion of the Class X Notional Amount equal
to the Certificate Principal Balance of the Class H Certificates.
"Class H Component Pass-Through Rate": A per annum rate equal
to the Weighted Average Adjusted Net Mortgage Rate minus the Class H
Pass-Through Rate.
"Class H Pass-Through Rate": A per annum rate equal to 6.000%;
provided, however, such rate shall not exceed the Weighted Average Adjusted Net
Mortgage Rate for the related Distribution Date.
"Class J Certificate": Any one of the Certificates with a
"Class J" designation on the face thereof, substantially in the form of Exhibit
A-11 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class J Component": With respect to the Class X Certificates,
at any date of determination, that portion of the Class X Notional Amount equal
to the Certificate Principal Balance of the Class J Certificates.
"Class J Component Pass-Through Rate": A per annum rate equal
to the Weighted Average Adjusted Net Mortgage Rate minus the Class J
Pass-Through Rate.
"Class J Pass-Through Rate": A per annum rate equal to 6.000%;
provided, however, such rate shall not exceed the Weighted Average Adjusted Net
Mortgage Rate for the related Distribution Date.
"Class K Certificate": Any one of the Certificates with a
"Class K" designation on the face thereof, substantially in the form of Exhibit
A-12 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class K Component": With respect to the Class X Certificates,
at any date of determination, that portion of the Class X Notional Amount equal
to the Certificate Principal Balance of the Class K Certificates.
"Class K Component Pass-Through Rate": A per annum rate equal
to the Weighted Average Adjusted Net Mortgage Rate minus the Class K
Pass-Through Rate.
"Class K Pass-Through Rate": A per annum rate equal to 6.000%;
provided, however, such rate shall not exceed the Weighted Average Adjusted Net
Mortgage Rate for the related Distribution Date.
"Class LA-1 Uncertificated Interest": A regular interest in
REMIC I which is held as an asset of REMIC II and having the initial
Uncertificated Principal Balance and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LA-2 Uncertificated Interest": A regular interest in
REMIC I which is held as an asset of REMIC II and having the initial
Uncertificated Principal Balance and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LB Uncertificated Interest": A regular interest in
REMIC I which is held as an asset of REMIC II and having the initial
Uncertificated Principal Balance and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LC Uncertificated Interest": A regular interest in
REMIC I which is held as an asset of REMIC II and having the initial
Uncertificated Principal Balance and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LD Uncertificated Interest": A regular interest in
REMIC I which is held as an asset of REMIC II and having the initial
Uncertificated Principal Balance and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LE Uncertificated Interest": A regular interest in
REMIC I which is held as an asset of REMIC II and having the initial
Uncertificated Principal Balance and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LF Uncertificated Interest": A regular interest in
REMIC I which is held as an asset of REMIC II and having the initial
Uncertificated Principal Balance and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LG Uncertificated Interest": A regular interest in
REMIC I which is held as an asset of REMIC II and having the initial
Uncertificated Principal Balance and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LH Uncertificated Interest": A regular interest in
REMIC I which is held as an asset of REMIC II and having the initial
Uncertificated Principal Balance and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LJ Uncertificated Interest": A regular interest in
REMIC I which is held as an asset of REMIC II and having the initial
Uncertificated Principal Balance and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class LK Uncertificated Interest": A regular interest in
REMIC I which is held as an asset of REMIC II and having the initial
Uncertificated Principal Balance and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class Notional Amount": The Class X Notional Amount.
"Class Principal Balance": The aggregate principal amount of
any Class of Sequential Pay Certificates outstanding as of any date of
determination. As of the Closing Date, the Class Principal Balance of each such
Class of Certificates shall equal the Initial Class Principal Balance thereof.
On each Distribution Date, the Class Principal Balance of each Class of the
Sequential Pay Certificates shall be permanently reduced by the amount of any
distributions of principal made thereon on such Distribution Date pursuant to
Section 4.01(b) and, if and to the extent appropriate, shall be further
permanently reduced on such Distribution Date as provided in Section 4.04.
"Class R-I Certificate": Any one of the Certificates with a
"Class R-I" designation on the face thereof, substantially in the form of
Exhibit A-13 attached hereto, and evidencing the sole Class of "residual
interest" in REMIC I for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a
"Class R-II" designation on the face thereof, substantially in the form of
Exhibit A-14 attached hereto, and evidencing the sole Class of "residual
interest" in REMIC II for purposes of the REMIC Provisions.
"Class X Certificate": Any one of the Certificates with a
"Class X" designation on the face thereof, substantially in the form of Exhibit
A-3, and evidencing a "regular interest" in REMIC II for purposes of the REMIC
Provisions.
"Class X Notional Amount": The aggregate hypothetical or
notional principal amount on which the Class X Certificates collectively accrue
interest, which amount is equal to the aggregate of the Uncertificated Principal
Balances of the Class LA-1, Class LA-2, Class LB, Class LC, Class LD, Class LE,
Class LF, Class LG, Class LH, Class LJ and Class LK interests, corresponding to
the Certificate Principal Balances of the Class A-1, Class A-2, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J and Class K
Certificates, respectively, as of the preceding Distribution Date (after giving
effect to the distributions of principal on such Distribution Date) or, in the
case of the first Distribution Date, as of the Closing Date.
"Class X Pass-Through Rate": With respect to any Distribution
Date, a rate per annum, rounded to eight decimal places, equal to the weighted
average of the Component Pass-Through Rates on the Class A-1 Component, the
Class A-2 Component, the Class B Component, the Class C Component, the Class D
Component, the Class E Component, the Class F Component, the Class G Component,
the Class H Component, the Class J Component and the Class K Component, weighted
on the basis of their respective portions of the Class X Notional Amount.
"Closing Date": February 23, 1999.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date,
the period commencing immediately following the Determination Date in the
calendar month preceding the month in which such Distribution Date occurs (or,
in the case of the initial Distribution Date, commencing immediately following
the Cut-off Date) and ending on and including the Determination Date in the
calendar month in which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission.
"Component": Any of the Class A-1 Component, Class A-2
Component, Class B Component, Class C Component, Class D Component, Class E
Component, Class F Component, Class G Component, Class H Component, Class J
Component and Class K Component.
"Component Pass-Through Rate": Any of the Class A-1 Component
Pass-Through Rate, the Class A-2 Component Pass-Through Rate, the Class B
Component Pass-Through Rate, the Class C Component Pass-Through Rate, the Class
D Component Pass-Through Rate, the Class E Component Pass-Through Rate, the
Class F Component Pass-Through Rate, the Class G Component Pass-Through Rate,
the Class H Component Pass-Through Rate, the Class J Component Pass-Through Rate
and the Class K Component Pass-Through Rate.
"Confidential Information": As defined in Section 3.24.
"Controlling Class": As of any date of determination, the
outstanding Class of Sequential Pay Certificates with the lowest Payment
Priority (the Class A Certificates being treated as a single Class for this
purpose) that has a then outstanding Class Principal Balance at least equal to
25% of the Initial Class Principal Balance thereof (or, if no Class of
Sequential Pay Certificates has a Class Principal Balance at least equal to 25%
of the Initial Class Principal Balance thereof, then the "Controlling Class"
shall be the outstanding Class of Sequential Pay Certificates with the then
largest outstanding Class Principal Balance).
"Controlling Class Certificateholders": Each Holder (or
Certificate Owner, if applicable) of a Certificate of the Controlling Class as
certified to the Trustee from time to time by such Holder (or Certificate
Owner).
"Corporate Trust Office": The principal corporate trust office
of the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 11000 Broken Land Parkway, Columbia,
Maryland 21044-3562.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has ceased to be such in accordance with
the definition of "Specially Serviced Mortgage Loan" (other than by reason of a
Liquidation Event occurring in respect of such Mortgage Loan or a related
Mortgaged Property becoming an REO Property).
"Corresponding Certificate" and "Corresponding REMIC I Regular
Interest": For any Class of REMIC I Regular Interests, the related Class of
REMIC II Regular Certificates set forth below and for any Class of REMIC II
Regular Certificates, the related Class of REMIC I Regular Interests set forth
below:
Corresponding REMIC I
Corresponding Certificate Regular Interest
------------------------- ----------------
Class A-1 Certificate Class LA-1 Uncertificated Interest
Class A-2 Certificate Class LA-2 Uncertificated Interest
Class B Certificate Class LB Uncertificated Interest
Class C Certificate Class LC Uncertificated Interest
Class D Certificate Class LD Uncertificated Interest
Class E Certificate Class LE Uncertificated Interest
Class F Certificate Class LF Uncertificated Interest
Class G Certificate Class LG Uncertificated Interest
Class H Certificate Class LH Uncertificated Interest
Class J Certificate Class LJ Uncertificated Interest
Class K Certificate Class LK Uncertificated Interest
"CPR": As defined in the Base Prospectus.
"CSSA": The Commercial Real Estate Secondary Market and
Securitization Association.
"CSSA Loan Periodic Update File": As defined in Section
4.02(b).
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan that
is cross-collateralized and cross-defaulted with one or more other Mortgage
Loans.
"Current Principal Distribution Amount": With respect to any
Distribution Date, an amount (calculated in accordance with Section 1.02) equal
to the aggregate of, without duplication:
(a) the principal portions of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments due or deemed due, as the
case may be, in respect of the Mortgage Loans and any REO Loans for their
respective Due Dates occurring during the related Collection Period;
(b) all Principal Prepayments received on the Mortgage Loans
during the related Collection Period;
(c) with respect to any Balloon Mortgage Loan as to which the
related Stated Maturity Date occurred during or prior to the related Collection
Period, any payment of principal (exclusive of any Principal Prepayment and any
amount described in subclause (d) below) that was made by or on behalf of the
related Mortgagor during the related Collection Period, net of any portion of
such payment that represents a recovery of the principal portion of any Monthly
Payment (other than a Balloon Payment) due, or the principal portion of any
Assumed Monthly Payment deemed due, in respect of such Balloon Mortgage Loan on
a Due Date during or prior to the related Collection Period and not previously
recovered;
(d) all Liquidation Proceeds (net of Liquidation Expenses) and
Insurance Proceeds received on or in respect of the Mortgage Loans during the
related Collection Period that were identified and applied by the Master
Servicer as recoveries of principal thereof, in each case net of any portion of
such amounts that represents a recovery of the principal portion of any Monthly
Payment (other than a Balloon Payment) due, or of the principal portion of any
Assumed Monthly Payment deemed due, in respect of any such Mortgage Loan on a
Due Date during or prior to the related Collection Period and not previously
recovered; and
(e) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance Proceeds and REO Revenues received on or in respect of any REO
Properties during the related Collection Period that were identified and applied
by the Master Servicer as recoveries of principal of the related REO Loans, in
each case net of any portion of such amounts that represents a recovery of the
principal portion of any Monthly Payment (other than a Balloon Payment) due, or
of the principal portion of any Assumed Monthly Payment deemed due, in respect
of any such REO Loan or the predecessor Mortgage Loan on a Due Date during or
prior to the related Collection Period and not previously recovered.
"Custodian": A Person who is at any time appointed by the
Trustee pursuant to Section 8.11 as a document custodian for the Mortgage Files,
which Person shall not be the Depositor, the Mortgage Loan Seller or an
Affiliate of either.
"Cut-off Date": February 1, 1999.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-off Date, net
of all unpaid payments of principal due in respect thereof on or before such
date.
"DCR": Duff & Phelps Credit Rating Co. or its successor in
interest. If neither such rating agency nor any successor remains in existence,
"DCR" shall be deemed to refer to such other nationally recognized statistical
rating agency or other comparable Person designated by the Depositor, notice of
which designation shall be given to the Trustee, the Master Servicer, the
Special Servicer and the REMIC Administrator, and specific ratings of Duff &
Phelps Credit Rating Co. herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"DCR Review Threshold": As defined in Section 3.26(k).
"Debt Service Coverage Ratio": With respect to any Mortgage
Loan, as of any date of determination, and calculated without regard to any
cross-collateralization feature of such Mortgage Loan, the ratio of (x) the Net
Operating Income (before payment of any debt service on such Mortgage Loan)
generated by the related Mortgaged Property during the most recently ended
period of not more than twelve months or less than three months for which
financial statements (whether or not audited) have been received by or on behalf
of the Mortgage Loan Seller (prior to the Closing Date) or the Master Servicer
or Special Servicer (following the Closing Date) (such Net Operating Income to
be annualized if the relevant period is less than twelve months), to (y) the
product of the amount of the Monthly Payment in effect for such Mortgage Loan as
of such date of determination, multiplied by 12.
"Default Charges": Any and all Default Interest and late
payment charges paid or payable, as the context requires, in connection with a
default under a Mortgage Loan or any successor REO Loan.
"Default Interest": With respect to any Mortgage Loan (or
related REO Loan), any amounts collected thereon, other than late payment
charges and Prepayment Premiums, that represent interest (exclusive, if
applicable, of Additional Interest) in excess of interest accrued on the
principal balance of such Mortgage Loan (or REO Loan) at the related Mortgage
Rate, such excess interest arising out of a default under such Mortgage Loan.
"Defaulted Mortgage Loan": Any Specially Serviced Mortgage
Loan as to which a material default has occurred or a default in respect of any
payment thereon is reasonably foreseeable, and which the Special Servicer has
determined, in its reasonable and good faith judgment, will become the subject
of a foreclosure sale or similar proceedings (the basis for which determination
shall be set forth in an Officer's Certificate to be delivered to the Master
Servicer and the Trustee).
"Defaulting Party": As defined in Section 7.01(b).
"Definitive Certificate": As defined in Section 5.03(a).
"Delinquent Loan Status Report": A report or reports setting
forth, among other things, those Mortgage Loans which, as of the Determination
Date for the related Distribution Date] were (i) delinquent 30-59 days, (ii)
delinquent 60-89 days, (iii) delinquent 90 days or more, (iv) current but
specially serviced, (v) in foreclosure but as to which the related Mortgaged
Property had not become REO Property, or (vi) related to a Mortgaged Property
which had become REO Property.
"Delivery Date": On or about February 23, 1999.
"Denomination": As defined in Section 5.01(a).
"Depositor": NationsLink Funding Corporation, or its successor
in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other
financial institution or other Person for whom from time to time the Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Depository Rules": As defined in Section 5.02(b).
"Designated Interest Reserve Mortgage Loans": For purposes of
determining whether an Interest Reserve Event has occurred in the applicable
year, each Mortgage Loan for which, as of the Determination Date occurring in
February, or in January in a year that is not a leap year, of any year (a) the
Master Servicer or Special Servicer has (i) received a notice of Principal
Prepayment, (ii) sent a notice of acceleration of the Mortgage Loan, (iii)
received a notice from a Mortgagor that such Mortgagor intends to deliver the
deed to the Mortgaged Property in lieu of foreclosure or trustee's sale, or (iv)
received a notice of the Mortgagor's bankruptcy, or (b) a Balloon Payment is due
February 1 of the applicable year.
"Determination Date": With respect to any Distribution Date,
the 10th day of the month in which such Distribution Date occurs, or if such
10th day is not a Business Day, the Business Day immediately preceding.
"Directing Certificateholder": The Controlling Class
Certificateholder (or its designee) selected by the Majority Certificateholder
of the Controlling Class, as certified by the Trustee from time to time;
provided, however, that (i) absent such selection, or (ii) until a Directing
Certificateholder is so selected, or (iii) upon receipt of a notice from a
majority of the Controlling Class, by Certificate Principal Balance, that a
Directing Certificateholder is no longer designated, the Controlling Class
Certificateholder that owns the largest aggregate Certificate Balance of the
Controlling Class will be the Directing Certificateholder.
"Directly Operate": With respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers (other than the sale of an REO Property pursuant to Section
3.18(d)), the performance of any construction work thereon or any use of such
REO Property in a trade or business conducted by REMIC I other than through an
Independent Contractor; provided, however, that the Special Servicer (or any
Sub-Servicer on behalf of the Special Servicer) shall not be considered to
Directly Operate an REO Property solely because the Special Servicer (or any
Sub-Servicer on behalf of the Special Servicer) establishes rental terms,
chooses tenants, enters into or renews leases, deals with taxes and insurance,
or makes decisions as to, or funds, repairs or capital expenditures with respect
to such REO Property (including, without limitation, construction activity to
effect repairs or in conjunction with leasing activity).
"Discount Rate Fraction": As defined in Section 4.01(c).
"Disqualified Non-U.S. Person": With respect to a Class R-I or
Class R-II Certificate, any Non-U.S. Person or agent thereof other than (i) a
Non-U.S. Person that holds the Class R-I or Class R-II Certificate in connection
with the conduct of a trade or business within the United States and has
furnished the transferor and the Certificate Registrar with an effective IRS
Form 4224 or (ii) a Non-U.S. Person that has delivered to both the transferor
and the Certificate Registrar an opinion of a nationally recognized tax counsel
to the effect that the transfer of the Class R-I or Class R-II Certificate to it
is in accordance with the requirements of the Code and the regulations
promulgated thereunder and that such transfer of the Class R-I or Class R-II
Certificate will not be disregarded for federal income tax purposes.
"Disqualified Organization": Any of the following: (i) the
United States or a possession thereof, any State or any political subdivision
thereof, or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for Freddie Mac, a majority of its board of directors is not
selected by any such governmental unit), (ii) a foreign government,
international organization, or any agency or instrumentality of either of the
foregoing, (iii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code or (v)
any other Person so designated by the REMIC Administrator based upon an Opinion
of Counsel that the holding of an Ownership Interest in a Residual Certificate
by such Person may cause the Trust or any Person having an Ownership Interest in
any Class of Certificates, other than such Person, to incur a liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Residual Certificate to such Person.
The terms "United States", "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any
Class of REMIC II Regular Certificates, for any Distribution Date, the Accrued
Certificate Interest in respect of such Class of Certificates for such
Distribution Date, reduced (to not less than zero) by that portion, if any, of
the Net Aggregate Prepayment Interest Shortfall for such Distribution Date
allocated to such Class of Certificates as set forth below. The Net Aggregate
Prepayment Interest Shortfall, if any, for each Distribution Date shall be
allocated first, to the Class K, Class J, Class H, Class G, Class F, Class E,
Class D, Class C and Class B Certificates, in that order, in each case up to an
amount equal to the lesser of any remaining unallocated portion of such Net
Aggregate Prepayment Interest Shortfall and any Accrued Certificate Interest in
respect of the particular Class of Certificates for such Distribution Date; and,
thereafter, if and to the extent that any portion of such Net Aggregate
Prepayment Interest Shortfall remains unallocated, pro rata among the Class A-1,
Class A-2 and Class X Certificates, in accordance with the respective amounts of
Accrued Certifcate Interest for each such Class of Certificates for such
Distribution Date.
"Distribution Account": The segregated account or accounts
created and maintained by the Trustee pursuant to Section 3.04(b) in trust for
the Certificateholders, which shall be entitled "Norwest Bank Minnesota,
National Association, as Trustee, in trust for the registered holders of
NationsLink Funding Corporation, Commercial Mortgage Pass-Through Certificates,
Series 1999-1, Distribution Account".
"Distribution Date": The 20th day of any month, or if such
20th day is not a Business Day, the Business Day immediately following,
commencing in March, 1999.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.02(e).
"DTC": As defined in Section 5.03(d).
"Due Date": With respect to (i) any Mortgage Loan on or prior
to its Stated Maturity Date, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on such Mortgage Loan is scheduled
to be first due; (ii) any Mortgage Loan after its Stated Maturity Date, the day
of the month set forth in the related Mortgage Note on which each Monthly
Payment on such Mortgage Loan had been scheduled to be first due; and (iii) any
REO Loan, the day of the month set forth in the related Mortgage Note on which
each Monthly Payment on the related Mortgage Loan had been scheduled to be first
due.
"Eligible Account": Any of (i) an account maintained with a
federal or state chartered depository institution or trust company, including,
without limitation, the Trustee (if it meets the following rating criteria), the
long-term unsecured debt obligations of which are rated no less than "Aa3" by
Moody's, "A" by DCR (if rated by DCR) and "AA-" by S&P (if the deposits are to
be held in the account for more than 30 days), or the short-term unsecured debt
obligations of which are rated no less than "P-1" by Moody's, "D-1" by DCR (if
rated by DCR) and "A-1" by S&P (if the deposits are to be held in the account
for 30 days or less), in each case, at any time funds are on deposit therein,
(ii) a segregated trust account or accounts maintained with the corporate trust
department of a federally chartered depository institution or trust company,
including, without limitation, the Trustee, acting in its fiduciary capacity,
(iii) a segregated trust account or accounts maintained with the corporate trust
department of a state chartered depository institution or trust company,
including, without limitation, the Trustee, acting in its fiduciary capacity and
subject to regulations regarding fiduciary funds on deposit therein
substantially similar to 12 C.F.R. ss.9.10(b), or (iv) any other account which
would not result in the downgrade, qualification (if applicable) or withdrawal
of the rating then assigned by either Rating Agency to any Class of Certificates
(as confirmed in writing by each Rating Agency).
"Emergency Advance": Any Servicing Advance, whether or not it
is a Servicing Advance that, pursuant hereto, the Special Servicer is required
to request the Master Servicer to make, that must be made within 5 Business Days
of the Special Servicer's becoming aware that it must be made in order to avoid
any material penalty, any material harm to a Mortgaged Property or any other
material adverse consequence to the Trust Fund.
"ERISA": The Employee Retirement Income Security Act of 1974,
as amended.
"Escrow Payment": Any payment received by the Master Servicer
or the Special Servicer for the account of any Mortgagor for application toward
the payment of real estate taxes, assessments, insurance premiums and similar
items in respect of the related Mortgaged Property.
"Event of Default": One or more of the events described in
Section 7.01(a).
"Excess Interest Rate": With respect to any Hyper-Amortization
Loan after its Anticipated Repayment Date, the incremental increase in the
Mortgage Rate for such Mortgage Loan resulting from the passage of such
Anticipated Repayment Date.
"Exchange Act": The Securities Exchange Act of 1934, as
amended.
"Exemption-Favored Party": Any of (i) NationsBank Corporation
(predecessor in interest to BankAmerica Corporation), (ii) any Person directly
or indirectly, through one or more intermediaries, controlling, controlled by or
under common control with BankAmerica Corporation and (iii) any member of a
syndicate or selling group of which BankAmerica Corporation or a person
described in clause (ii) is a manager or co-manager with respect to a Class of
Certificates.
"Fannie Mae": The Federal National Mortgage Association or any
successor.
"FDIC": The Federal Deposit Insurance Corporation or any
successor.
"Final Distribution Date": The final Distribution Date on
which any distributions are to be made on the Certificates as contemplated by
Section 9.01.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any defaulted Mortgage Loan or REO Property and,
accordingly, the related REO Loan (other than a Mortgage Loan or REO Property,
as the case may be, purchased by the Mortgage Loan Seller or an Affiliate
thereof pursuant to Section 2.03, by the Majority Certificateholder of the
Controlling Class pursuant to Section 3.18(b), by the Master Servicer or the
Special Servicer pursuant to Section 3.18(c) or by the Master Servicer or the
Majority Certificateholder of the Controlling Class pursuant to Section 9.01)
that there has been a recovery of all Insurance Proceeds, Liquidation Proceeds
and other payments or recoveries (including, without limitation, by reason of a
sale of such Mortgage Loan or REO Property pursuant to Section 3.18(d) hereof)
that the Special Servicer has determined, in accordance with the Servicing
Standard, exercised without regard to any obligation of the Master Servicer or
Special Servicer to make payments from its own funds pursuant to Section
3.07(b), will be ultimately recoverable.
"Freddie Mac": The Federal Home Loan Mortgage Corporation or
any successor.
"Ground Lease": The ground lease pursuant to which any
Mortgagor holds a leasehold interest in the related Mortgaged Property and any
estoppel agreements entered into by and between lenders and ground lessees
and/or ground lessors and/or mortgagees of the ground leasehold estate.
"Group": A group of Mortgage Loans that are
cross-collateralized and cross-defaulted with each other.
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including, without limitation,
those so identified pursuant to CERCLA or any other federal, state or local
environmental related laws and regulations, and specifically including, without
limitation, asbestos and asbestos-containing materials, polychlorinated
biphenyls ("PCBs"), radon gas, petroleum and petroleum products, urea
formaldehyde and any substances classified as being "in inventory", "usable work
in process" or similar classification which would, if classified as unusable, be
included in the foregoing definition.
"Historical Loan Modification Report": A report or reports
setting forth, among other things, those Mortgage Loans which, as of the close
of business on the Determination Date immediately preceding the preparation of
such report or reports, have been modified pursuant to this Agreement (i) during
the Collection Period ending on such Determination Date and (ii) since the
Cut-off Date, showing the original and the revised terms thereof.
"Historical Loss Report": A report or reports setting forth,
among other things, as of the close of business on the Determination Date
immediately preceding the preparation of such report or reports, (i) the amount
of Liquidation Proceeds received, and Liquidation Expenses incurred, both during
the Collection Period ending on such Determination Date and historically, and
(ii) the amount of Realized Losses occurring during such Collection Period and
historically, set forth on a Mortgage Loan-by-Mortgage Loan basis.
"HUD-Approved Servicer": A servicer that is a mortgagee
approved by the Secretary of Housing and Urban Development pursuant to Sections
207 and 211 of the National Housing Act.
"Hyper-Amortization Loan": The Mortgage Loan relating to the
Mortgaged Property identified on the Mortgage Schedule as "Summit Shopping
Center."
"Independent": When used with respect to any specified Person,
any such Person who (i) is in fact independent of the Depositor, the Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator and any and all Affiliates thereof, (ii) does not have any direct
financial interest in or any material indirect financial interest in any of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator or any Affiliate thereof, and (iii) is not
connected with the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator or any Affiliate thereof
as an officer, employee, promoter, underwriter, trustee, partner, director or
Person performing similar functions; provided, however, that a Person shall not
fail to be Independent of the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator or any
Affiliate thereof merely because such Person is the beneficial owner of 1% or
less of any Class of securities issued by the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or any Affiliate thereof, as the case may be.
"Independent Contractor": Any Person that would be an
"independent contractor" with respect to REMIC I within the meaning of Section
856(d)(3) of the Code if REMIC I were a real estate investment trust (except
that the ownership test set forth in that section shall be considered to be met
by (i) any Person that owns, directly or indirectly, 35 percent or more of any
Class of Certificates, or such other interest in any Class of Certificates as is
set forth in an Opinion of Counsel, which shall not be an expense of the
Trustee, the REMIC Administrator or the Trust, delivered to the Trustee and the
REMIC Administrator), so long as REMIC I does not receive or derive any income
from such Person and provided that the relationship between such Person and
REMIC I is at arm's length, all within the meaning of Treasury Regulations
Section 1.856-4(b)(5), or (ii) any other Person upon receipt by the Trustee and
the REMIC Administrator of an Opinion of Counsel, which shall be at no expense
to the Trustee, the REMIC Administrator or the Trust, to the effect that the
taking of any action in respect of any REO Property by such Person, subject to
any conditions therein specified, that is otherwise herein contemplated to be
taken by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code, or cause any income realized in respect of such REO Property to fail
to qualify as Rents from Real Property.
"Initial Class Notional Amount": With respect to the Class X
Certificates, the initial Class X Notional Amount thereof as of the Closing Date
equal to $1,222,145,439.
"Initial Class Principal Balance": With respect to any Class
of Sequential Pay Certificates, the initial Class Principal Balance thereof as
of the Closing Date, in each case as set forth below:
Initial Class
Class Principal Balance
- ----- -----------------
Class A-1 $198,904,170
Class A-2 $659,653,000
Class B $64,162,635
Class C $61,107,271
Class D $67,217,999
Class E $33,608,999
Class F $51,941,181
Class G $9,166,090
Class H $30,553,635
Class J $15,276,817
Class K $30,553,642
"Initial Pool Balance": The aggregate Cut-off Date Balance of
all the Mortgage Loans included in the Trust Fund as of the Closing Date.
"Institutional Accredited Investor": As defined in Section
5.02(b).
"Insurance Policy": With respect to any Mortgage Loan or REO
Property, any hazard insurance policy, flood insurance policy, title policy or
other insurance policy that is maintained from time to time in respect of such
Mortgage Loan (or the related Mortgaged Property) or in respect of such REO
Property, as the case may be.
"Insurance Proceeds": Proceeds paid under any Insurance
Policy, to the extent such proceeds are not applied to the restoration of the
related Mortgaged Property or REO Property or released to the Mortgagor, in
either case, in accordance with the Servicing Standard.
"Interest Accrual Period": With respect to each REMIC I
Regular Interest and each Class of REMIC II Regular Certificates, for any
Distribution Date, the calendar month immediately preceding the month in which
such Distribution Date occurs.
"Interest Only Certificate": Any Class X Certificate.
"Interest Reserve Account": The segregated account or accounts
created and maintained by the Trustee pursuant to Section 4.05 in trust for the
Certificateholders, which shall be entitled "Norwest Bank Minnesota, National
Association, as Trustee, in trust for the registered holders of NationsLink
Funding Corporation, Commercial Mortgage Pass-Through Certificates, Series
1999-1, Interest Reserve Account".
"Interest Reserve Event": An event which will occur if, on the
Master Servicer Remittance Date in any February, and in any January in a year
that is not a leap year, the Weighted Average Adjusted Net Mortgage Rate
anticipated for February of the same year would be less than the Class A-2 Pass
Through Rate. Such anticipated Weighted Average Adjusted Net Mortgage Rate for
February, to the extent calculated in January, shall be calculated as of the
January Master Servicer Remittance Date and shall be determined assuming that
there will be no payments of principal prior to the following March 1 other than
payments of principal on Mortgage Loans determined as of the preceding
Determination Date to be Designated Interest Reserve Mortgage Loans, to the
extent any such Mortgage Loans have Net Mortgage Rates for February in excess of
the Class A-2 Pass Through Rate (computed without regard to the addition of
Withheld Amounts). It shall be further assumed for purposes of this definition
that Designated Interest Reserve Mortgage Loans do prepay during the calendar
month in which such Determination Date occurs, and that no other principal
payments (including without limitation scheduled principal payments or Principal
Prepayments) are received. Such anticipated Weighted Average Adjusted Net
Mortgage Rate for February, to the extent calculated in February, shall be
calculated assuming no Principal Prepayments after the Determination Date.
"Interested Person": The Depositor, the Mortgage Loan Seller,
the Master Servicer, any Sub-Servicer, the Special Servicer, any Holder of a
Certificate, or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section
5.02(b).
"IRS": The Internal Revenue Service or any successor.
"Late Collections": With respect to any Mortgage Loan, all
amounts received thereon during any Collection Period, whether as payments,
Insurance Proceeds, Liquidation Proceeds or otherwise, which represent late
collections of the principal and/or interest portions of a Monthly Payment
(other than a Balloon Payment) or an Assumed Monthly Payment in respect of such
Mortgage Loan due or deemed due, as the case may be, for a Due Date in a
previous Collection Period, or for a Due Date coinciding with or preceding the
Cut-off Date, and not previously received or recovered. With respect to any REO
Loan, all amounts received in connection with the related REO Property during
any Collection Period, whether as Insurance Proceeds, Liquidation Proceeds, REO
Revenues or otherwise, which represent late collections of the principal and/or
interest portions of a Monthly Payment (other than a Balloon Payment) or an
Assumed Monthly Payment in respect of the related Mortgage Loan or of an Assumed
Monthly Payment in respect of such REO Loan due or deemed due, as the case may
be, for a Due Date in a previous Collection Period and not previously received
or recovered. The term "Late Collections" shall specifically exclude any Default
Charges.
"Liquidation Event": With respect to any Mortgage Loan, any of
the following events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made with respect to such Mortgage Loan; (iii) such
Mortgage Loan is repurchased by the Mortgage Loan Seller or any Affiliate
thereof pursuant to Section 2.03; or (iv) such Mortgage Loan is purchased by the
Majority Certificateholder of the Controlling Class pursuant to Section 3.18(b),
by the Master Servicer or the Special Servicer pursuant to Section 3.18(c), or
by the Master Servicer or the Majority Certificateholder of the Controlling
Class pursuant to Section 9.01. With respect to any REO Property (and the
related REO Loan), any of the following events: (x) a Final Recovery
Determination is made with respect to such REO Property; or (y) such REO
Property is purchased by the Master Servicer or the Majority Certificateholder
of the Controlling Class pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and
necessary "out of pocket" costs and expenses due and owing (but not otherwise
covered by Servicing Advances) in connection with the liquidation of any
Specially Serviced Mortgage Loan or REO Property pursuant to Section 3.09 or
3.18 (including, without limitation, legal fees and expenses, committee or
referee fees and, if applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced
Mortgage Loan or REO Property (other than any Specially Serviced Mortgage Loan
or REO Property repurchased (x) by the Mortgage Loan Seller or any Affiliate
thereof pursuant to Section 2.03 within 90 days (or, if applicable, 180 days) of
the Mortgage Loan Seller's notice or discovery of the breach or Document Defect
giving rise to such repurchase obligation, (y) by the Majority Certificateholder
of the Controlling Class, the Master Servicer or the Special Servicer pursuant
to Section 3.18 or (z) by the Master Servicer or the Majority Certificateholder
of the Controlling Class pursuant to Section 9.01), the fee designated as such
and payable to the Special Servicer pursuant to the fourth paragraph of Section
3.11(c).
"Liquidation Fee Rate": With respect to each Specially
Serviced Mortgage Loan or REO Property as to which a Liquidation Fee is payable,
1.0%.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Master Servicer or the Special
Servicer in connection with: (i) the taking of all or a part of a Mortgaged
Property by exercise of the power of eminent domain or condemnation; (ii) the
liquidation of a Mortgaged Property or other collateral constituting, or that
constituted, security for a defaulted Mortgage Loan, through trustee's sale,
foreclosure sale, REO Disposition or otherwise, exclusive of any portion thereof
required to be released to the related Mortgagor in accordance with applicable
law and the terms and conditions of the related Mortgage Note and Mortgage;
(iii) the realization upon any deficiency judgment obtained against a Mortgagor
or any guarantor; (iv) the purchase of a Defaulted Mortgage Loan by the Majority
Certificateholder of the Controlling Class pursuant to Section 3.18(b) or by the
Master Servicer or the Special Servicer pursuant to Section 3.18(c) or any other
sale thereof pursuant to Section 3.18(d); (v) the repurchase of a Mortgage Loan
by the Mortgage Loan Seller or any Affiliate thereof pursuant to Section 2.03;
or (vi) the purchase of a Mortgage Loan or REO Property by the Master Servicer
or the Majority Certificateholder of the Controlling Class pursuant to Section
9.01.
"MAI": Member of the Appraisal Institute.
"Majority Certificateholder": With respect to any specified
Class or Classes of Certificates, as of any date of determination, any Holder or
particular group of Holders of Certificates of such Class or Classes, as the
case may be, entitled to a majority of the Voting Rights allocated to such Class
or Classes, as the case may be.
"Master Servicer": Banc One Mortgage Capital Markets, LLC, its
successor in interest or any successor master servicer appointed as herein
provided.
"Master Servicer Remittance Amount": With respect to any
Master Servicer Remittance Date, an amount equal to (a) all amounts on deposit
in the Certificate Account as of the commencement of business on such Master
Servicer Remittance Date, net of (b) any portion of the amounts described in
clause (a) of this definition that represents one or more of the following: (i)
collected Monthly Payments that are due on a Due Date following the end of the
related Collection Period, (ii) any payments of principal (including, without
limitation, Principal Prepayments) and interest (including, without limitation,
Additional Interest), Liquidation Proceeds and Insurance Proceeds received after
the end of the related Collection Period, (iii) any Prepayment Premiums received
after the end of the related Collection Period, (iv) any amounts payable or
reimbursable to any Person from the Certificate Account pursuant to any of
clauses (ii) through (xvii) of Section 3.05(a), and (v) any amounts deposited in
the Certificate Account in error; provided that, with respect to the Master
Servicer Remittance Date that occurs in the same calendar month as the Final
Distribution Date, the Master Servicer Remittance Amount will be calculated
without regard to clauses (b)(i), (b)(ii) and (b)(iii) of this definition.
"Master Servicer Remittance Date": The Business Day
immediately preceding each Distribution Date.
"Master Servicing Fee": With respect to each Mortgage Loan and
REO Loan, the fee payable to the Master Servicer pursuant to Section 3.11(a) and
from which the Standby Fee and any Primary Servicing Fees are payable.
"Master Servicing Fee Rate": With respect to each Mortgage
Loan (and any related REO Loan), the rate per annum that is 0.20 basis points
(0.0020% per annum) less than the Administrative Fee Rate specified for such
Mortgage Loan in the Mortgage Loan Schedule.
"Master Servicer's Website": As specified in Section 4.02(a).
"Modified Mortgage Loan": Any Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the Special
Servicer pursuant to Section 3.20 in a manner that:
(a) affects the amount or timing of any payment of principal
or interest due thereon (other than, or in addition to, bringing current Monthly
Payments with respect to such Mortgage Loan);
(b) except as expressly contemplated by the related Mortgage,
results in a release of the lien of the Mortgage on any material portion of the
related Mortgaged Property without a corresponding Principal Prepayment in an
amount not less than the fair market value (as is), as determined by an
Appraisal delivered to the Special Servicer (at the expense of the related
Mortgagor and upon which the Special Servicer may conclusively rely), of the
property to be released; or
(c) in the good faith and reasonable judgment of the Special
Servicer, otherwise materially impairs the security for such Mortgage Loan or
reduces the likelihood of timely payment of amounts due thereon.
"Monthly Payment": With respect to any Mortgage Loan, for any
Due Date as of which such Mortgage Loan is outstanding, the scheduled monthly
payment (or, in the case of a Hyper-Amortization Loan after its Anticipated
Repayment Date, the minimum required monthly payment) of principal and/or
interest on such Mortgage Loan, including, without limitation, a Balloon
Payment, that is actually payable by the related Mortgagor from time to time
under the terms of the related Mortgage Note (as such terms may be changed or
modified in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, waiver or amendment of such Mortgage Loan
granted or agreed to by the Master Servicer or Special Servicer pursuant to
Section 3.20) and applicable law; provided that the Monthly Payment due in
respect of any Hyper-Amortization Loan after its Anticipated Repayment Date
shall not include Additional Interest.
"Moody's": Moody's Investors Service, Inc. or its successor in
interest. If neither such rating agency nor any successor remains in existence,
"Moody's" shall be deemed to refer to such other nationally recognized
statistical rating agency or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Trustee, the Master
Servicer, the Special Servicer and the REMIC Administrator, and specific ratings
of Moody's Investors Service, Inc. herein referenced shall be deemed to refer to
the equivalent ratings of the party so designated.
"Mortgage": With respect to any Mortgage Loan, separately and
collectively, as the context may require, each mortgage, deed of trust and/or
other similar document or instrument securing the related Mortgage Note and
creating a lien on the related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan, subject to
Section 2.01(c), collectively the following documents:
(i) the original Mortgage Note, endorsed by the most recent
endorsee prior to the Trustee or, if none, by the originator, without recourse,
either in blank or to the order of the Trustee in the following form: "Pay to
the order of Norwest Bank Minnesota, National Association, as trustee for the
registered holders of NationsLink Funding Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1999-1, without recourse";
(ii) the original or a copy of the Mortgage and, if
applicable, the originals or copies of any intervening assignments thereof
showing a complete chain of assignment from the originator of the Mortgage Loan
to the most recent assignee of record thereof prior to the Trustee, if any, in
each case with evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable
form, executed by the most recent assignee of record thereof prior to the
Trustee or, if none, by the originator, in favor of the Trustee (in such
capacity);
(iv) the original or a copy of any related Assignment of
Leases (if any such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening assignments thereof
showing a complete chain of assignment from the originator of the Mortgage Loan
to the most recent assignee of record thereof prior to the Trustee, if any, in
each case with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases
(if any such item is a document separate from the Mortgage), in recordable form,
executed by the most recent assignee of record thereof prior to the Trustee or,
if none, by the originator, in favor of the Trustee (in such capacity), which
assignment may be included as part of the corresponding assignment of Mortgage
referred to in clause (iii) above;
(vi) an original or copy of any related Security Agreement (if
such item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a complete
chain of assignment from the originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any;
(vii) an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage) executed by the most
recent assignee of record thereof prior to the Trustee or, if none, by the
originator, in favor of the Trustee (in such capacity), which assignment may be
included as part of the corresponding assignment of Mortgage referred to in
clause (iii) above;
(viii) originals or copies of all assumption, modification,
written assurance and substitution agreements, with evidence of recording
thereon if appropriate, in those instances where the terms or provisions of the
Mortgage, Mortgage Note or any related security document have been modified or
the Mortgage Loan has been assumed;
(ix) the original or a copy of the lender's title insurance
policy (or, if a title insurance policy has not yet been issued, a commitment
for title insurance "marked-up" at the closing of such Mortgage Loan or other
binding commitment to issue title insurance), together with all endorsements or
riders (or copies thereof) that were issued with or subsequent to the issuance
of such policy, insuring the priority of the Mortgage as a first lien on the
Mortgaged Property;
(x) the original of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan which was in the possession of the Mortgage
Loan Seller at the time the Mortgage Files were delivered to the Trustee;
(xi) (A) file copies of any UCC Financing Statements and
continuation statements which were filed in order to perfect (and maintain the
perfection of) any security interest held by the originator of the Mortgage Loan
(and each assignee of record prior to the Trustee) in and to the personalty of
the Mortgagor at the Mortgaged Property (in each case with evidence of filing
thereon) and which were in the possession of the Mortgage Loan Seller at the
time the Mortgage Files were delivered to the Trustee and (B) if any such
security interest is perfected and the related UCC-1, UCC-2 or UCC-3 financing
statements were in the possession of the Mortgage Loan Seller, an original UCC-2
or UCC-3 financing statement, as applicable, executed by the most recent
assignee of record prior to the Trustee or, if none, by the originator,
evidencing the transfer of such security interest to the Trustee (or a certified
copy of such assignment as sent for filing);
(xii) the original or a copy of the power of attorney (with
evidence of recording thereon, if appropriate) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to above was
signed on behalf of the Mortgagor;
(xiii) if the Mortgagor has a leasehold interest in the
related Mortgaged Property, the original Ground Lease or a copy thereof;
(xiv) the original or copy of any intercreditor agreement
relating to such Mortgage Loan;
(xv) the original or copy of any operating lease relating to
the related Mortgaged Property;
(xvi) the original or a copy of the related loan agreement;
(xvii) the original or a copy of any management agreement
relating to such Mortgage Loan;
(xviii) the original or a copy of any lock-box agreement
relating to such Mortgage Loan;
(xix) the original or a copy of any environmental report
relating to such Mortgage Loan;
(xx) with respect to each Mortgage Loan as to which the
related Mortgaged Property is operated as a franchise restaurant, the original
or a copy of any franchise agreement relating to such Mortgage Loan; and
(xxi) any additional documents required to be added to the
Mortgage File pursuant to this Agreement;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or a Custodian appointed thereby, such term
shall not be deemed to include such documents and instruments required to be
included therein unless they are actually so received.
"Mortgage Loan": Each of the mortgage loans transferred and
assigned to the Trustee pursuant to Section 2.01 and from time to time held in
the Trust Fund. As used herein, the term "Mortgage Loan" includes the related
Mortgage Note, Mortgage and other security documents contained in the related
Mortgage File.
"Mortgage Loan Purchase and Sale Agreement": The Mortgage Loan
Purchase and Sale Agreement, dated as of February 23, 1999, among NationsBank,
the NB Owner Trust and the Depositor.
"Mortgage Loan Schedule": The list of Mortgage Loans
transferred on the Closing Date to the Trustee as part of the Trust Fund, which
list is attached hereto as Schedule I and may be amended from time to time in
accordance with Section 2.02(e). The Mortgage Loan Schedule shall set forth,
among other things, the following information with respect to each Mortgage
Loan:
(i) the loan number and control number;
(ii) the street address or addresses (including city, state
and zip code) of the related Mortgaged Property;
(iii) (a) the Mortgage Rate in effect as of the Cut-off Date
and (b) whether the Mortgage Loan accrues interest on the basis of the actual
number of days elapsed in the relevant month of accrual and a 360-day year (an
"Actual/360 Basis") or on the basis of a 360-day year consisting of twelve
30-day months (a "30/360 Basis");
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity and (B) Stated
Maturity Date or, in the case of a Hyper-Amortization Loan, the Anticipated
Repayment Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due
Date following the Cut-off Date;
(ix) the Administrative Fee Rate (inclusive of the Primary
Servicing Fee Rate);
(x) the Primary Servicing Fee Rate;
(xi) the Master Servicing Fee Rate;
(xii) whether the Mortgagor's interest in the related
Mortgaged Property is a leasehold estate;
(xiii) whether the Mortgage Loan is a Cross-Collateralized
Mortgage Loan and, if so, a reference to the other Mortgage Loans that are
cross-collateralized with such Mortgage Loan;
(xiv) the property type (e.g., multifamily);
(xv) the property size (the square feet or units);
(xvi) the original amortization term;
(xvii) whether the Mortgage Loan is a Hyper-Amortization Loan;
and
(xviii) in the case of the Hyper-Amortization Loan, the rate
represented by the Participant Retained Interest.
The Mortgage Loan Schedule shall also set forth the aggregate Cut-off Date
Balance for all of the Mortgage Loans. Such list may be in the form of more than
one list, collectively setting forth all of the information required.
"Mortgage Loan Seller": NationsBank, N.A.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto.
"Mortgage Pool": Collectively, all of the Mortgage Loans and
any successor REO Loans.
"Mortgage Rate": With respect to (i) any Mortgage Loan on or
prior to its Stated Maturity Date, the annualized rate at which interest is
scheduled (in the absence of a default) to accrue on such Mortgage Loan from
time to time in accordance with the terms of the related Mortgage Note (as such
may be modified at any time following the Closing Date) and applicable law, (ii)
any Mortgage Loan after its Stated Maturity Date, the annualized rate described
in clause (i) above determined without regard to the passage of such Stated
Maturity Date, and (iii) any REO Loan, the annualized rate described in clause
(i) or (ii) above, as applicable, determined as if the related Mortgage Loan had
remained outstanding ; provided, however, that for purposes of computing the
Weighted Average Adjusted Net Mortgage Rate with respect to each Mortgage Loan
that accrues interest on an Actual/360 Basis, (i) the Mortgage Rate for the
one-month period preceding the Due Dates in January and February in any year
which is not a leap year and in February in any year which is a leap year, shall
be determined net of any related Withheld Amounts and (ii) the Mortgage Rate for
the one-month period preceding the Due Date in March shall be determined taking
into account the addition of any such related Withheld Amounts.
"Mortgaged Property": Individually and collectively, as the
context may require, each real property (together with all improvements and
fixtures thereon) subject to the lien of a Mortgage and constituting collateral
for a Mortgage Loan. With respect to any Cross-Collateralized Mortgage Loan, as
the context may require, "Mortgaged Property" may mean, collectively, all the
Mortgaged Properties securing such Cross-Collateralized Mortgage Loan.
"Mortgagor": The obligor or obligors on a Mortgage Note,
including without limitation, any Person that has acquired the related Mortgaged
Property and assumed the obligations of the original obligor under the Mortgage
Note.
"Multifamily Loan": Each Mortgage Loan designated as a
"Multifamily Loan" on the Mortgage Loan Schedule.
"NationsBank": NationsBank, N.A., or its successor in
interest.
"NB Conduit Originator": Each of ARCS Commercial Mortgage Co.,
L.P., a California limited partnership, Bankers Mutual, a division of Franchise
Mortgage Acceptance Company, Berkshire Mortgage Finance Corporation, First
Security Bank, N.A., L.J. Melody & Company, Patrician Financial Company Limited
Partnership, SouthTrust Capital Funding Corporation and WMF Washington Mortgage
Corp.
"NB Owner Trust": NationsBank Commercial Mortgage Owner Trust
I, a Delaware business trust.
"Net Aggregate Prepayment Interest Shortfall": With respect to
any Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the aggregate amount remitted by the Master Servicer for
deposit in the Distribution Account for such Distribution Date pursuant to
Section 3.19(e) in connection with such Prepayment Interest Shortfalls.
"Net Default Charges": With respect to any Mortgage Loan or
REO Loan, any Default Charges actually collected thereon (determined in
accordance with the allocation of amounts collected as specified in Section
1.02), net of (if, but only if, such Default Charges are allocable to the period
that such Mortgage Loan was a Specially Serviced Mortgage Loan) any Advance
Interest accrued on Advances made in respect of such Mortgage Loan that are
reimbursable from such Default Charges in accordance with Section 3.05(a)(viii).
"Net Investment Earnings": With respect to any Investment
Account for any Collection Period, the amount, if any, by which the aggregate of
all interest and other income realized during such Collection Period on funds
held in such Investment Account, exceeds the aggregate of all losses and
investment costs, if any, incurred during such Collection Period in connection
with the investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any Investment Account
for any Collection Period, the amount by which the aggregate of all losses and
investment costs, if any, incurred during such Collection Period in connection
with the investment of funds held in such Investment Account in accordance with
Section 3.06, exceeds the aggregate of all interest and other income realized
during such Collection Period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO
Loan, as of any date of determination, a rate per annum equal to the related
Mortgage Rate then in effect, minus the related Administrative Fee Rate. For
purposes of calculating the Pass-Through Rate for each Class of REMIC Regular
Certificates from time to time, the Net Mortgage Rate for any Mortgage Loan will
be calculated without regard to any modification, waiver or amendment of the
terms of such Mortgage Loan subsequent to the Closing Date.
"Net Operating Income": With respect to any Mortgaged
Property, the total operating revenues derived from such Mortgaged Property,
minus the total fixed and variable operating expenses incurred in respect of
such Mortgaged Property (subject to adjustments for, among other things, (i)
non-cash items such as depreciation and amortization, (ii) capital expenditures
(inclusive of replacement reserves) and (iii) debt service on loans secured by
the Mortgaged Property).
"New Lease": Any lease of REO Property entered into at the
direction of the Special Servicer on behalf of the Trust, including any lease
renewed, modified or extended on behalf of the Trust, if the Trust has the right
to renegotiate the terms of such lease.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance made or proposed
to be made in respect of a Mortgage Loan or REO Loan which, as determined by the
Master Servicer or, if applicable, the Trustee, in its reasonable and good faith
judgment, will not be recoverable (together with Advance Interest accrued
thereon), or which in fact was not ultimately recovered, from late collections,
Insurance Proceeds, Liquidation Proceeds or any other recovery on or in respect
of such Mortgage Loan or REO Property (without giving effect to potential
recoveries on deficiency judgments or recoveries from guarantors).
"Nonrecoverable Servicing Advance": Any Servicing Advance made
or proposed to be made in respect of a Mortgage Loan or REO Property which, as
determined by the Master Servicer, the Special Servicer or, if applicable, the
Trustee, in its reasonable and good faith judgment, will not be recoverable
(together with Advance Interest accrued thereon), or which in fact was not
ultimately recovered, from late collections, Insurance Proceeds, Liquidation
Proceeds or any other recovery on or in respect of such Mortgage Loan or REO
Property (without giving effect to potential recoveries on deficiency judgments
or recoveries from guarantors).
"Non-Registered Certificate": Unless and until registered
under the Securities Act, any Class F, Class G, Class H, Class J or Class K
Certificate or Residual Certificate.
"Non-Retained Portion": As defined in Section 3.27(d).
"Non-U.S. Person": Any person other than a U.S. Person.
"Officer's Certificate": A certificate signed by a Servicing
Officer of the Master Servicer or the Special Servicer, a Responsible Officer of
the Trustee or any authorized officer of the Mortgage Loan Seller, as the case
may be.
"Operating Statement Analysis Report": As defined in Section
4.02(b).
"Opinion of Counsel": A written opinion of counsel (who must,
in connection with any opinion rendered pursuant hereto with respect to tax
matters or a resignation under Section 6.04, be Independent counsel, but who
otherwise may be salaried counsel for the Depositor, the Mortgage Loan Seller,
the Trustee, the REMIC Administrator, the Master Servicer or the Special
Servicer), which written opinion is acceptable and delivered to the
addressee(s).
"OTS": The Office of Thrift Supervision or any successor
thereto.
"Over 49% Interest": As defined in Section 3.26(i).
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"Partially Retained Loan": As defined in Section 3.27.
"Participant": As defined in Section 3.27.
"Participant Retained Interest": As defined in Section 3.27.
"Pass-Through Rate": With respect to any Class of Sequential
Pay Certificates (other than the Class G, Class H, Class J and Class K
Certificates), for any Distribution Date, the Weighted Average Adjusted Net
Mortgage Rate or, in the case of the Class G, Class H, Class J and Class K
Certificates, the fixed rate per annum specified as such in respect of such
Class of Certificates in the Preliminary Statement hereto. With respect to the
Class X Certificates, for any Distribution Date, the Class X Pass-Through Rate.
"Payment Priority": With respect to any Class of Certificates,
the priority of the Holders thereof in respect of the Holders of the other
Classes of Certificates to receive distributions out of the Available
Distribution Amount for any Distribution Date. The Payment Priority of the
respective Classes of Certificates shall be, in descending order, as follows:
first, the respective Classes of Senior Certificates, pro rata; second, the
Class B Certificates; third, the Class C Certificates; fourth, the Class D
Certificates; fifth, the Class E Certificates; sixth, the Class F Certificates;
seventh, the Class G Certificates; eighth, the Class H Certificates; ninth, the
Class J Certificates; tenth, the Class K Certificates; and last, the respective
Classes of Residual Certificates.
"Percentage Interest": With respect to any REMIC II Regular
Certificate, the portion of the relevant Class evidenced by such Certificate,
expressed as a percentage, the numerator of which is the Certificate Principal
Balance or Certificate Notional Amount, as the case may be, of such Certificate
as of the Closing Date, as specified on the face thereof, and the denominator of
which is the Initial Class Principal Balance or Initial Class Notional Amount,
as the case may be, of the relevant Class. With respect to a Residual
Certificate, the percentage interest in distributions to be made with respect to
the relevant Class, as stated on the face of such Certificate.
"Permitted Encumbrances": As defined in Section 2.05(c)(v).
"Permitted Investments": Any one or more of the following
obligations:
(a) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States or any agency
or instrumentality thereof, provided such obligations are backed by the full
faith and credit of the United States;
(b) repurchase obligations with respect to any security
described in clause (i) above, provided that the long-term unsecured debt
obligations of the party agreeing to repurchase such obligations are rated "Aaa"
by Moody's, "AAA" by DCR (if rated by DCR) and "AAA" by S&P;
(c) federal funds, uncertificated certificates of deposit,
time deposits and bankers' acceptances (having original maturities of not more
than 365 days) of any bank or trust company organized under the laws of the
United States or any state, provided that the short-term unsecured debt
obligations of such bank or trust company are rated no less than "P-1" by
Moody's, "D-1+" by DCR (if rated by DCR) and "A-1+" by S&P;
(d) commercial paper (having original maturities of not more
than 365 days) of any corporation incorporated under the laws of the United
States or any state thereof rated no less than "P-1" by Moody's, "D-1+" by DCR
(if rated by DCR) and "A-1+" by S&P;
(e) units of money markets funds that maintain a constant
asset value and which are rated in the highest applicable rating category by
each of S&P, Moody's and DCR (if not rated by DCR, then a confirmation that such
fund will not result in a downgrade or withdrawal of the rating on any Class of
Certificate); and
(f) any other obligation or security which would not result in
the downgrade, qualification (if applicable) or withdrawal of the rating then
assigned by any of the Rating Agencies to any Class of Certificates, evidence of
which shall be confirmed in writing by each Rating Agency to the Trustee;
provided that no investment described hereunder shall evidence either the right
to receive (a) only interest with respect to such investment or (b) a yield to
maturity greater than 120% of the yield to maturity at par of the underlying
obligations; and provided, further, that no investment described hereunder may
be purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity; and
provided, further, that each investment described hereunder shall, by its terms,
have a predetermined fixed amount of principal due at maturity (that cannot vary
or change) and either a fixed interest rate or variable interest rate tied to a
single interest rate index plus a single fixed spread; and provided, further,
that each investment described hereunder shall be a "cash flow investment", as
defined in the REMIC Provisions; and provided, further, that no investment may
have a rating from S&P with an "r" highlighter.
"Permitted Transferee ": Any Transferee of a Residual
Certificate other than either a Disqualified Organization or a Disqualified
Non-U.S. Person or any nominee, agent or middleman of either.
"Person": Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or any agency or political subdivision
thereof.
"Phase I Environmental Assessment": A "Phase I assessment" or,
in the case of certain Mortgage Loans having an initial principal balance under
$1,000,000, a transaction screen, as described in, and meeting the criteria of,
(i) Chapter 5 of the FNMA Multifamily Guide or any successor provisions covering
the same subject matter, in the case of Specially Serviced Mortgage Loans as to
which the related Mortgaged Property is multifamily property or (ii) the
American Society for Testing and Materials in the case of Specially Serviced
Mortgage Loans as to which the related Mortgaged Property is a non-multifamily
property.
"P&I Advance": As to any Mortgage Loan or REO Loan, any
advance made by the Master Servicer or the Trustee pursuant to Section 4.03.
"Plan": As defined in Section 5.02(c).
"Prepayment Assumption": The assumption that no Mortgage Loan
(other than a Hyper-Amortization Loan) is prepaid prior to its Stated Maturity
Date and that no Hyper-Amortization Loan is prepaid prior to, but each is paid
in its entirety on, its Anticipated Repayment Date, such assumption to be used
for determining the accrual of original issue discount, market discount and
premium, if any, on the Mortgage Loans, the REMIC I Regular Interests and the
Certificates for federal income tax purposes.
"Prepayment Interest Excess": With respect to any Mortgage
Loan that was subject to a Principal Prepayment in full or in part made on or
prior to the Determination Date in any calendar month but after the first day of
such month, any payment of interest (net of related Master Servicing Fees and
exclusive of Prepayment Premiums and, in the case of a Hyper-Amortization Loan
after its Anticipated Repayment Date, Additional Interest) actually collected
from the related Mortgagor and intended to cover the period from the
commencement of such month to the date of prepayment.
"Prepayment Interest Shortfall": With respect to any
non-Specially Serviced Mortgage Loan that was subject to a Principal Prepayment
in full or in part made after the Determination Date in any calendar month, the
amount of uncollected interest (determined without regard to any Prepayment
Premium that may have been collected and exclusive of, in the case of a
Hyper-Amortization Loan after its Anticipated Repayment Date, Additional
Interest) that would have accrued at a per annum rate equal to the sum of the
Net Mortgage Rate for such non-Specially Serviced Mortgage Loan plus the Trustee
Fee Rate, on the amount of such Principal Prepayment during the period
commencing on the date as of which such Principal Prepayment was applied to such
non-Specially Serviced Mortgage Loan and ending on the last day of such calendar
month, inclusive.
"Prepayment Premium": Any premium, penalty or fee paid or
payable, as the context requires, by a Mortgagor in connection with a Principal
Prepayment on, or other early collection of principal of, a Mortgage Loan or any
successor REO Loan.
"Prepayment Premium Amount": As defined in Section 4.01(c).
"Primary Servicing Fee": With respect to each Mortgage Loan
that is subject to a Sub-Servicing Agreement as of the Closing Date, the monthly
fee payable to the Sub-Servicer by the Master Servicer from the Master Servicing
Fee.
"Primary Servicing Fee Rate": With respect to each Mortgage
Loan that is subject to a Sub-Servicing Agreement as of the Closing Date, the
rate per annum specified as such in the Mortgage Loan Schedule (which rate, in
the case of the Mortgage Loan secured by the Mortgaged Property identified on
the Mortgage Loan Schedule as "Summit Shopping Center", includes the Participant
Retained Interest).
"Primary Servicing Office": With respect to the Master
Servicer, the office thereof primarily responsible for performing its respective
duties under this Agreement, initially located in Texas and, with respect to the
Special Servicer, the office thereof primarily responsible for performing its
respective duties under this Agreement, initially located in Texas.
"Principal Distribution Amount": With respect to any
Distribution Date, the aggregate of the Current Principal Distribution Amount
for such Distribution Date and, if such Distribution Date is subsequent to the
initial Distribution Date, the excess, if any, of the Principal Distribution
Amount for the preceding Distribution Date, over the aggregate distributions of
principal made on the Sequential Pay Certificates on the preceding Distribution
Date.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest (without regard to
any Prepayment Premium that may have been collected) representing scheduled
interest due on any date or dates in any month or months subsequent to the month
of prepayment.
"Prospectus Supplement": That certain prospectus supplement
dated February 17, 1999, relating to the Registered Certificates, that is a
supplement to the Base Prospectus.
"Purchase Price": With respect to any Mortgage Loan, a price
equal to the unpaid principal balance of the Mortgage Loan as of the date of
purchase, together with (a) all accrued and unpaid interest (excluding, in the
case of a Hyper-Amortization after its Anticipated Repayment Date, Additional
Interest) on the Mortgage Loan at the related Mortgage Rate to but not including
the Due Date in the Collection Period of purchase, (b) all related unreimbursed
Servicing Advances, and (c) all accrued and unpaid Advance Interest in respect
of related Advances. With respect to any REO Property, a price equal to the
unpaid principal balance of the related REO Loan as of the date of purchase,
together with (a) all accrued and unpaid interest (excluding, in the case of a
Hyper-Amortization after its Anticipated Repayment Date, Additional Interest) on
such REO Loan at the related Mortgage Rate to but not including the Due Date in
the Collection Period of purchase, (b) all related unreimbursed Servicing
Advances, and (c) all accrued and unpaid Advance Interest in respect of related
Advances. The Purchase Price of any Mortgage Loan or REO Property is intended to
include, without limitation, principal and interest previously advanced with
respect thereto and not previously reimbursed.
"Qualified Appraiser": In connection with the appraisal of any
Mortgaged Property or REO Property, an Independent MAI-designated appraiser with
at least five years of experience in respect of the relevant geographic location
and property type.
"Qualified Institutional Buyer": As defined in Section
5.02(b).
"Qualified Insurer": An insurance company or security or
bonding company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Rating Agency": Each of Moody's, DCR and S&P.
"Rated Final Distribution Date": As to each Class of
Certificates, January 20, 2031.
"Realized Loss": With respect to each defaulted Mortgage Loan
as to which a Final Recovery Determination has been made, or with respect to any
REO Loan as to which a Final Recovery Determination has been made as to the
related REO Property, an amount (not less than zero) equal to (i) the unpaid
principal balance of such Mortgage Loan or REO Loan, as the case may be, as of
the commencement of the Collection Period in which the Final Recovery
Determination was made, plus (ii) all accrued but unpaid interest (excluding, in
the case of a Hyper-Amortization Loan after its Anticipated Repayment Date,
Additional Interest) on such Mortgage Loan or REO Loan, as the case may be
(without taking into account the amounts described in subclause (iv) of this
sentence), at the related Mortgage Rate to but not including the Due Date in the
Collection Period in which the Final Recovery Determination was made, plus (iii)
any related unreimbursed Servicing Advances as of the commencement of the
Collection Period in which the Final Recovery Determination was made, together
with any new related Servicing Advances made during such Collection Period,
minus (iv) all payments and proceeds, if any, received in respect of such
Mortgage Loan or REO Loan, as the case may be, during the Collection Period in
which such Final Recovery Determination was made (net of any related Liquidation
Expenses paid therefrom).
With respect to any Mortgage Loan as to which any portion of
the outstanding principal or accrued interest owed thereunder was forgiven in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section
3.20, the amount of such principal or interest (other than any Default Interest)
so forgiven.
With respect to any Mortgage Loan as to which the Mortgage
Rate thereon has been permanently reduced and not recaptured for any period in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section
3.20, the amount of the consequent reduction, if any, in the interest portion of
each successive Monthly Payment due thereon. Each such Realized Loss shall be
deemed to have been incurred on the Due Date for each affected Monthly Payment.
"Record Date": With respect to each Class of Certificates, for
any Distribution Date, the last Business Day of the calendar month immediately
preceding the month in which such Distribution Date occurs.
"Registered Certificates": The Class A-1, Class A-2, Class X,
Class B, Class C, Class D and Class E Certificates.
"Reimbursement Rate": The rate per annum applicable to the
accrual of Advance Interest, which rate per annum shall be equal to the "prime
rate" as published in the "Money Rates" section of The Wall Street Journal, as
such "prime rate" may change from time to time. If The Wall Street Journal
ceases to publish such "prime rate", then the Trustee, in its sole discretion,
shall select an equivalent publication that publishes such "prime rate"; and if
such "prime rate" is no longer generally published or is limited, regulated or
administered by a governmental or quasi-governmental body, then the Trustee
shall select a comparable interest rate index. In either case, such selection
shall be made by the Trustee in its sole discretion and the Trustee shall notify
the Master Servicer and the Special Servicer in writing of its selection.
"Reinvestment Yield": As defined in Section 4.01(c).
"REMIC": A "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
"REMIC Administrator": Norwest Bank Minnesota, National
Association, its successor in interest, or any successor REMIC administrator
appointed as herein provided.
"REMIC I": A segregated pool of assets subject hereto and to
be administered hereunder, with respect to which a REMIC election is to be made,
consisting of: (i) the Mortgage Loans as from time to time are subject to this
Agreement and all payments under and proceeds of such Mortgage Loans received or
receivable after the Cut-off Date (other than payments of principal, interest
and other amounts due and payable on the Mortgage Loans on or before the Cut-off
Date), together with all documents, Escrow Payments and Reserve Funds delivered
or caused to be delivered hereunder with respect to such Mortgage Loans by the
Mortgage Loan Seller; (ii) any REO Property acquired in respect of a Mortgage
Loan and all payments and proceeds of such REO Property; and (iii) such amounts
on or with respect to clauses (i) or (ii) as from time to time are deposited in
the Distribution Account, the Certificate Account, the Interest Reserve Account
and the REO Account (if established).
"REMIC I Distribution Amount": As defined in Section
4.01(a)(i).
"REMIC I Regular Interests": Any of the Class LA-1, Class
LA-2, Class LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH,
Class LJ and Class LK Uncertificated Interests.
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest, the Weighted Average Adjusted Net Mortgage Rate.
"REMIC II": A segregated pool of assets subject hereto and to
be administered hereunder, and consisting of all of the REMIC I Regular
Interests and amounts distributed thereon as from time to time are held in the
REMIC II Distribution Account.
"REMIC II Certificate": Any Certificate, other than a Class
R-I Certificate.
"REMIC II Distribution Account": The segregated account or
accounts created and maintained as a separate trust account or accounts by the
Trustee pursuant to Section 3.04, which shall be entitled "Norwest Bank
Minnesota, National Association, as Trustee, in trust for Holders of NationsLink
Funding Corporation, Commercial Mortgage Pass-Through Certificates, Series
1999-1, REMIC II Distribution Account" and which account shall be an Eligible
Account.
"REMIC II Regular Certificate": Any REMIC II Certificate,
other than a Class R-II Certificate.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property,
gross income of the character described in Section 856(d) of the Code, which
income, subject to the terms and conditions of that Section of the Code in its
present form, does not include:
(a) except as provided in Section 856(d)(4) or (6) of the
Code, any amount received or accrued, directly or indirectly, with respect to
such REO Property, if the determination of such amount depends in whole or in
part on the income or profits derived by any Person from such property (unless
such amount is a fixed percentage or percentages of receipts or sales and
otherwise constitutes Rents from Real Property);
(b) any amount received or accrued, directly or indirectly,
from any Person if the Trust Fund owns directly or indirectly (including by
attribution) a ten percent or greater interest in such Person determined in
accordance with Sections 856(d)(2)(B) and (d)(5) of the Code;
(c) any amount received or accrued, directly or indirectly,
with respect to such REO Property if any Person Directly Operates such REO
Property;
(d) any amount charged for services that are not customarily
furnished in connection with the rental of property to tenants in buildings of a
similar class in the same geographic market as such REO Property within the
meaning of Treasury Regulations Section 1.856-4(b)(1) (whether or not such
charges are separately stated); and
(e) rent attributable to personal property unless such
personal property is leased under, or in connection with, the lease of such REO
Property and, for any taxable year of the Trust Fund, such rent is no greater
than 15 percent of the total rent received or accrued under, or in connection
with, the lease.
"REO Account": A segregated custodial account or accounts
created and maintained by the Special Servicer pursuant to Section 3.16 on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "Banc One Mortgage Capital Markets, LLC, as Special Servicer, in trust
for registered holders of NationsLink Funding Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1999-1, REO Account".
"REO Acquisition": The acquisition of an REO Property for
federal income tax purposes pursuant to Treasury Regulations Section 1.856-6.
"REO Disposition": The sale or other disposition of the REO
Property pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The mortgage loan deemed for purposes hereof to be
outstanding with respect to each REO Property acquired in respect of any
Mortgage Loan. Each REO Loan shall be deemed to provide for monthly payments of
principal and/or interest equal to its Assumed Monthly Payment and otherwise to
have the same terms and conditions as the predecessor Mortgage Loan. Each REO
Loan shall be deemed to have an initial unpaid principal balance and Stated
Principal Balance equal to the unpaid principal balance and Stated Principal
Balance, respectively, of the predecessor Mortgage Loan as of the date of the
related REO Acquisition. In addition, all Monthly Payments (other than any
Balloon Payment), Assumed Monthly Payments (in the case of a Balloon Mortgage
Loan delinquent in respect of its Balloon Payment) and other amounts due and
owing, or deemed to be due and owing, in respect of the predecessor Mortgage
Loan as of the date of the related REO Acquisition, shall be deemed to continue
to be due and owing in respect of an REO Loan. All amounts payable or
reimbursable to the Master Servicer, the Special Servicer and/or the Trustee in
respect of the related Mortgage Loan as of the date of the related REO
Acquisition, including, without limitation, any unpaid Servicing Fees and any
unreimbursed Advances, together with any Advance Interest accrued and payable to
the Master Servicer, Special Servicer and/or the Trustee in respect of such
Advances, shall continue to be payable or reimbursable to the Master Servicer,
Special Servicer and/or Trustee as the case may be, in respect of an REO Loan.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of the Trustee for the benefit of the Certificateholders
pursuant to Section 3.09 through foreclosure, acceptance of a deed-in-lieu of
foreclosure or otherwise in accordance with applicable law in connection with
the default or imminent default of a Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds
derived from the ownership, operation or leasing of any REO Property.
"REO Status Report": A report or reports substantially in the
form of Exhibit E attached hereto setting forth, among other things, with
respect to each REO Property that was included in the Trust Fund as of the close
of business on the Determination Date immediately preceding the preparation of
such report or reports, (i) the Acquisition Date of such REO Property, (ii) the
amount of income collected with respect to any REO Property (net of related
expenses) and other amounts, if any, received on such REO Property during the
related Collection Period and (iii) the value of the REO Property based on the
most recent Appraisal or other valuation thereof available to the Master
Servicer as of such Determination Date (including any valuation prepared
internally by the Special Servicer).
"Request for Release": A request for release signed by a
Servicing Officer of, as applicable, the Master Servicer or Special Servicer in
the form of Exhibit D attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(b).
"Required Claims-Paying Ratings": With respect to any
insurance carrier, claims-paying ability ratings at least equal to the following
minimum ratings assigned to such carrier by at least two of the following
parties (one of which, except with respect to a fidelity bond or errors and
omission insurance maintained by a Sub-Servicer but only to the extent in force
as of the Closing Date, must be an S&P rating) and, in any event, by each Rating
Agency that assigned a rating to the claims-paying ability of such insurance
carrier: Moody's ("A2" or better), DCR ("A" or better), Fitch IBCA, Inc. ("A" or
better), S&P ("A" or better) and A.M. Best ("A:IX" or better); provided,
however, that a rating by A.M. Best shall be disregarded and shall not count as
one of the two required ratings except with respect to a fidelity bond or errors
and omissions insurance maintained by a Sub-Servicer and then only to the extent
in force as of the Closing Date. Notwithstanding the preceding sentence, an
insurance carrier with lower or fewer claims-paying ability ratings shall be
deemed to have the "Required Claims-Paying Ratings" if each of the Rating
Agencies has confirmed in writing that such insurance carrier shall not result,
in and of itself, in a downgrading, withdrawal or qualification (if applicable)
of the then current rating assigned by such Rating Agency to any Class of
Certificates.
"Reserve Account": The account or accounts created and
maintained pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage Loan, any
amounts delivered by the related Mortgagor to be held in escrow by or on behalf
of the mortgagee representing reserves for principal and interest payments,
repairs, replacements, capital improvements (including, without limitation,
tenant improvements and leasing commissions), and/or environmental testing and
remediation with respect to the related Mortgaged Property.
"Residual Certificate": Any Class R-I or Class R-II
Certificate.
"Responsible Officer": When used with respect to the Trustee,
any officer assigned to the Corporate Trust Services Group, any vice president,
any assistant vice president, any assistant secretary, any assistant treasurer,
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers to whom a particular
matter is referred by the Trustee because of such officer's knowledge of and
familiarity with the particular subject. When used with respect to any
Certificate Registrar (other than the Trustee), any officer or assistant officer
thereof.
"S&P": Standard & Poor's Ratings Services, a division of the
McGraw-Hill Companies, Inc. or its successor in interest. If neither such rating
agency nor any successor remains in existence, "S&P" shall be deemed to refer to
such other nationally recognized statistical rating agency or other comparable
Person designated by the Depositor, notice of which designation shall be given
to the Trustee, the Master Servicer, the Special Servicer and the REMIC
Administrator, and specific ratings of Standard & Poor's Ratings Services, a
division of the McGraw-Hill Companies, Inc. herein referenced shall be deemed to
refer to the equivalent ratings of the party so designated.
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan, any
security agreement, chattel mortgage or similar document or instrument, whether
contained in the related Mortgage or executed separately, creating in favor of
the holder of such Mortgage a security interest in the personal property
constituting security for repayment of such Mortgage Loan.
"Senior Certificate": Any Class A-1, Class A-2 or Class X
Certificate.
"Senior Principal Distribution Cross-Over Date": The first
Distribution Date as of which the aggregate Class Principal Balance of the Class
A-1 and Class A-2 Certificates outstanding immediately prior to such
Distribution Date exceeds the sum of (a) the aggregate Stated Principal Balance
of the Mortgage Pool that will be outstanding immediately following such
Distribution Date, plus (b) the lesser of (i) the Principal Distribution Amount
for such Distribution Date and (ii) the portion of the Available Distribution
Amount for such Distribution Date that will remain after the distributions of
interest to be made on the Senior Certificates on such Distribution Date have
been so made.
"Sequential Pay Certificate": Any Class A, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J or Class K Certificate.
"Servicer Reports": As defined in Section 4.02.
"Servicing Account": The account or accounts created and
maintained pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary
"out of pocket" costs and expenses incurred or to be incurred, as the context
requires, by the Master Servicer or the Special Servicer (or, if applicable, the
Trustee) in connection with the servicing of a Mortgage Loan after a default,
delinquency or other unanticipated event, or in connection with the
administration of any REO Property, including, but not limited to, the cost of
(a) compliance with the obligations of the Master Servicer and/or the Special
Servicer set forth in Sections 3.03(c) and 3.09, (b) the preservation,
insurance, restoration, protection and management of a Mortgaged Property, (c)
obtaining any Liquidation Proceeds or Insurance Proceeds in respect of any
Mortgage Loan or REO Property, (d) any enforcement or judicial proceedings with
respect to a Mortgaged Property, including, without limitation, foreclosures,
and (e) the operation, management, maintenance and liquidation of any REO
Property; provided that notwithstanding anything herein to the contrary,
"Servicing Advances" shall not include allocable overhead of the Master Servicer
or the Special Servicer, such as costs for office space, office equipment,
supplies and related expenses, employee salaries and related expenses and
similar internal costs and expenses, or costs incurred by either such party in
connection with its purchase of any Mortgage Loan or REO Property pursuant to
any provision of this Agreement. All Emergency Advances made by the Special
Servicer hereunder shall be considered "Servicing Advances" for the purposes
hereof.
"Servicing Fees": With respect to each Mortgage Loan and REO
Loan, the Master Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents required
to be part of the related Mortgage File), including, without limitation, the
related environmental site assessment report(s) referred to in Section
2.05(c)(xiv), in the possession of the Master Servicer or the Special Servicer
and relating to the origination and servicing of any Mortgage Loan.
"Servicing Officer": Any officer or authorized signatory of
the Master Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of Mortgage Loans, whose name and specimen
signature appear on a list of such officers and authorized signatories furnished
by such party to the Trustee and the Depositor on the Closing Date, as such list
may be amended from time to time thereafter.
"Servicing Return Date": With respect to any Corrected
Mortgage Loan, the date that servicing thereof is returned by the Special
Servicer to the Master Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master
Servicer and the Special Servicer, to service and administer the Mortgage Loans
and any REO Properties for which such Person is responsible hereunder: (a) in
accordance with the higher standard of (i) the same manner in which, and with
the same care, skill, prudence and diligence with which, the Master Servicer or
Special Servicer, as the case may be, generally services and administers
comparable mortgage loans or assets, as applicable, for other third parties, and
(ii) the same manner in which, and with the same care, skill, prudence and
diligence with which, the Master Servicer or the Special Servicer, as the case
may be, generally services and administers comparable mortgage loans or assets,
as applicable, owned by it; (b) with a view to the timely collection of all
Monthly Payments of principal and interest under the Mortgage Loans or, if a
Mortgage Loan comes into and continues in default and if, in the good faith and
reasonable judgment of the Special Servicer, no satisfactory arrangements can be
made for the collection of the delinquent payments, the maximization of the
recovery on such Mortgage Loan to the Certificateholders (as a collective whole)
on a present value basis (the relevant discounting of anticipated collections
that will be distributable to Certificateholders to be performed at the related
Net Mortgage Rate (or, in the case of a Hyper-Amortization Loan after its
Anticipated Repayment Date, the related Net Mortgage Rate in effect immediately
prior to such Anticipated Repayment Date)); and (c) without regard to: (i) any
relationship that the Master Servicer or the Special Servicer, as the case may
be, or any Affiliate thereof may have with any related Mortgagor; (ii) the
ownership of any Certificate by the Master Servicer or the Special Servicer, as
the case may be, or by any Affiliate thereof; (iii) the Master Servicer's
obligation to make Advances; (iv) the Special Servicer's obligation to make (or
to direct the Master Servicer to make) Servicing Advances; (v) the right of the
Master Servicer (or any Affiliate thereof) or the Special Servicer (or any
Affiliate thereof), as the case may be, to receive compensation for its services
or reimbursement of costs hereunder or with respect to any particular
transaction; (vi) any credit that it has extended to any Mortgagor (e.g.
partnership debt) and (vii) the servicing of any other mortgage loans by the
Master Servicer or the Special Servicer.
"Servicing Transfer Event": With respect to any Mortgage Loan,
the occurrence of any of the events described in clauses (a) through (h) of the
definition of "Specially Serviced Mortgage Loan".
"Similar Law": As defined in Section 5.02(c).
"Single Certificate": For purposes of Section 4.02(a), a
Certificate of any Class of REMIC II Regular Certificates evidencing a $1,000
denomination or, in the case of a Class X Certificate, a 100% Percentage
Interest.
"Single-Purpose Entity": A Person, other than an individual,
whose organizational documents provide that it is formed solely for the purpose
of owning the related Mortgaged Property, Mortgaged Properties securing other
Mortgage Loans and assets incidental to the ownership and operation of such
Mortgaged Property or Properties, and which has agreed, either in such
organizational documents or the loan documents relating to any related Mortgage
Loan, that it (a) does not engage in any business unrelated to such property and
the financing thereof; (b) does not have any indebtedness other than as
permitted by the related Mortgage, (c) maintains its own books, records and
accounts, in each case which are separate and apart from the books, records and
accounts of any other Person; (d) conducts business in its own name; (e) does
not guarantee or assume the debts or obligations of any other person; (f) does
not commingle its assets or funds with those of any other Person; (g) transacts
business with affiliates on an arm's length basis; and (h) holds itself out as
being a legal entity separate and apart from any other Person. In addition, such
entity's organizational documents provide that any dissolution and winding up or
insolvency filing for such entity requires either the unanimous consent of all
partners or members, as applicable, or the consent of an independent Person
(whether as a partner, member, or director in such entity or in any Person that
is the managing member or general partner of such entity or otherwise), and
either such organizational documents or the terms of the mortgage loan documents
provide that such organizational documents may not be amended without the
consent of the lender as regards such single-purpose entity requirements.
"Special Servicer": Banc One Mortgage Capital Markets, LLC,
its successor in interest, or any successor special servicer appointed as herein
provided.
"Special Servicer Loan Status Report": A report or reports
(which need not be in a separate report or reports from the reports listed in
clauses (1), (2), (3), (4) and (6) of Section 4.02(b)) setting forth, among
other things, as of the close of business on the Determination Date immediately
preceding the preparation of such report or reports, (i) the aggregate unpaid
principal balance of all Specially Serviced Mortgage Loans and (ii) a
loan-by-loan listing of all Specially Serviced Mortgage Loans indicating their
status, date and reason for transfer to the Special Servicer.
"Special Servicing Fee": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, the fee designated as such and payable
to the Special Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0.25% per annum.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to
which any of the following events has occurred:
(a) the related Mortgagor has failed to make when due any
Balloon Payment, which failure has continued, or the Master Servicer determines,
in its good faith and reasonable judgment, will continue, unremedied for 30
days; or
(b) the related Mortgagor has failed to make when due any
Monthly Payment (other than a Balloon Payment) or any other payment required
under the related Mortgage Note or the related Mortgage, which failure has
continued, or the Master Servicer determines, in its good faith and reasonable
judgment, will continue, unremedied for 60 days; or
(c) the Master Servicer has determined, in its good faith and
reasonable judgment, that a default in the making of a Monthly Payment
(including, without limitation, a Balloon Payment) or any other payment required
under the related Mortgage Note or the related Mortgage is likely to occur
within 30 days and is likely to remain unremedied for at least 60 days or, in
the case of a Balloon Payment, for at least 30 days; or
(d) there shall have occurred a default under the related loan
documents, other than as described in clause (a) or (b) above, that may, in the
Master Servicer's good faith and reasonable judgment, materially impair the
value of the related Mortgaged Property as security for the Mortgage Loan or
otherwise materially and adversely affect the interests of Certificateholders,
which default has continued unremedied for the applicable cure period under the
terms of the Mortgage Loan (or, if no cure period is specified, 60 days); or
(e) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law or the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the related Mortgagor and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; or
(f) the related Mortgagor shall have consented to the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to such Mortgagor or of or relating to all or
substantially all of its property; or
(g) the related Mortgagor shall have admitted in writing its
inability to pay its debts generally as they become due, filed a petition to
take advantage of any applicable insolvency or reorganization statute, made an
assignment for the benefit of its creditors, or voluntarily suspended payment of
its obligations; or
(h) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the related
Mortgaged Property;
provided that a Mortgage Loan will cease to be a Specially Serviced Mortgage
Loan, when a Liquidation Event has occurred in respect of such Mortgage Loan,
when the related Mortgaged Property has become an REO Property, or at such time
as such of the following as are applicable occur with respect to the
circumstances identified above that caused the Mortgage Loan to be characterized
as a Specially Serviced Mortgage Loan (and provided that no other Servicing
Transfer Event then exists):
(w) with respect to the circumstances described in clauses (a)
and (b) above, the related Mortgagor has made three consecutive full and timely
Monthly Payments under the terms of such Mortgage Loan (as such terms may be
changed or modified in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or by reason of a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section
3.20);
(x) with respect to the circumstances described in clauses
(c), (e), (f) and (g) above, such circumstances cease to exist in the good faith
and reasonable judgment of the Special Servicer;
(y) with respect to the circumstances described in clause (d)
above, such default is cured; and
(z) with respect to the circumstances described in clause (h)
above, such proceedings are terminated.
"Standby Fee": With respect to each Mortgage Loan and each REO
Loan, the fee designated as such and payable to the Special Servicer pursuant to
the second paragraph of Section 3.11(c).
"Standby Fee Rate": With respect to each Mortgage Loan and
each REO Loan, 0.00075% per annum.
"Startup Day": With respect to each of REMIC I and REMIC II,
the day designated as such in Section 10.01(c).
"Stated Maturity Date": With respect to any Mortgage Loan, the
Due Date on which the last payment of principal is due and payable under the
terms of the related Mortgage Note as in effect on the Closing Date, without
regard to any change in or modification of such terms in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Mortgage Loan granted or agreed to by
the Master Servicer or Special Servicer pursuant to Section 3.20 and, in the
case of a Hyper-Amortization Loan, without regard to its Anticipated Repayment
Date.
"Stated Principal Balance": With respect to any Mortgage Loan
(and any successor REO Loan), a principal amount initially equal to the Cut-off
Date Balance of such Mortgage Loan, that is permanently reduced on each
Distribution Date (to not less than zero) by (i) all payments (or P&I Advances
in lieu thereof) of, and all other collections allocated as provided in Section
1.02 to, principal of or with respect to such Mortgage Loan (or successor REO
Loan) that are (or, if they had not been applied to cover any Additional Trust
Fund Expense, would have been) distributed to Certificateholders on such
Distribution Date, and (ii) the principal portion of any Realized Loss incurred
in respect of such Mortgage Loan (or successor REO Loan) during the related
Collection Period. Notwithstanding the foregoing, if a Liquidation Event occurs
in respect of any Mortgage Loan or REO Property, then the "Stated Principal
Balance" of such Mortgage Loan or of the related REO Loan, as the case may be,
shall be zero commencing as of the Distribution Date in the Collection Period
next following the Collection Period in which such Liquidation Event occurred.
"Subordinated Certificate": Any Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K or Residual Certificate.
"Sub-Servicer": Any Person with which the Master Servicer or
the Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicer Termination Compensation": As defined in Section
3.22(d).
"Sub-Servicer Termination Fee": As defined in Section 3.22(d).
"Sub-Servicing Agreement": The written contract between the
Master Servicer or the Special Servicer, on the one hand, and any Sub-Servicer,
on the other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
"Successor Servicer Retained Fee": As defined in Section
3.11(a).
"Tax Matters Person": With respect to each of REMIC I and
REMIC II, the Person designated as the "tax matters person" of such REMIC in the
manner provided under Treasury Regulations Section 1.860F-4(d) and Treasury
Regulations Section 301.6231(a)(7)-1. The "Tax Matters Person" for each of REMIC
I and REMIC II is the Holder of Certificates evidencing the largest Percentage
Interest in the related Class of Residual Certificates.
"Tax Returns": The federal income tax returns on Internal
Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of REMIC I and REMIC II due to its classification
as a REMIC under the REMIC Provisions, together with any and all other
information, reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal or
Applicable State Law.
"Termination Strip": As defined in Section 3.22(d).
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section
5.02(d)(i)(B).
"Transferable Portion": As defined in Section 3.11(a).
"Transferee": Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Trust": The common law trust created hereby.
"Trust Fund": Collectively, all of the assets of REMIC I and
REMIC II.
"Trust REMICs": REMIC I and REMIC II.
"Trustee": Norwest Bank Minnesota, National Association, in
its capacity as Trustee hereunder, its successor in interest, or any successor
trustee appointed as herein provided.
"Trustee Fee": The fee payable to the Trustee on each
Distribution Date for its services as Trustee hereunder, in an aggregate amount
equal to one month's interest at the Trustee Fee Rate in respect of each
Mortgage Loan and REO Loan, calculated on the Stated Principal Balance as of the
Due Date in the immediately preceding Collection Period and for the same number
of days (i.e., on the basis of, as applicable, a 360-day year consisting of
twelve 30-day months or the actual number of days elapsed during each calendar
month in a 360-day year) respecting which any related interest payment due on
such Mortgage Loan or deemed to be due on such REO Loan is computed under the
terms of the related Mortgage Note (as such terms may be changed or modified at
any time following the Closing Date) and applicable law, and without giving
effect to any Additional Interest that may accrue on the Hyper-Amortization Loan
after its Anticipated Repayment Date.
"Trustee Fee Rate": A rate of .002% per annum.
"Trustee's Website": The website maintained by the Trustee and
located at "www.ctslink.net/cmbs".
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and
filed pursuant to the Uniform Commercial Code, as in effect in the relevant
jurisdiction.
"UCC-1", "UCC-2" and "UCC-3": UCC financing statements on Form
UCC-1, Form UCC-2 and Form UCC-3, respectively.
"Uncertificated Accrued Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, one month's interest at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued on the Uncertificated Principal Balance of such REMIC
I Regular Interest outstanding immediately prior to such Distribution Date. The
Uncertificated Accrued Interest in respect of any REMIC I Regular Interest for
any Distribution Date shall be deemed to have accrued during the applicable
Interest Accrual Period.
"Uncertificated Distributable Interest": With respect to any
REMIC I Regular Interest, for any Distribution Date, the Uncertificated Accrued
Interest in respect of such REMIC I Regular Interest for such Distribution Date,
reduced (to not less than zero) by the product of (i) the Net Aggregate
Prepayment Interest Shortfall, if any, for such Distribution Date, multiplied by
(ii) a fraction, the numerator of which is the Uncertificated Accrued Interest
in respect of such REMIC I Regular Interest for such Distribution Date, and the
denominator of which is the aggregate Uncertificated Accrued Interest in respect
of all the REMIC I Regular Interests for such Distribution Date.
"Uncertificated Principal Balance": With respect to any Class
of REMIC I Regular Interests, (i) on or prior to the first Distribution Date, an
amount equal to the initial principal amount of such Class as specified in the
Preliminary Statement hereto, and (ii) as of any date of determination after the
first Distribution Date, an amount equal to the Certificate Principal Balance of
the Class of Corresponding Certificates on the Distribution Date immediately
prior to such date of determination.
"U.S. Person": A citizen or resident of the United States, a
corporation, partnership (except to the extent provided in the applicable
Treasury regulations) or other entity created or organized in, or under the laws
of, the United States or any political subdivision thereof, or an estate whose
income is subject to United States federal income tax regardless of its source,
or a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more such U.S.
Persons have the authority to control all substantial decisions of the trust
(or, to the extent provided in applicable Treasury regulations, certain trusts
in existence on August 20, 1996 which are eligible to elect to be treated as
U.S. Persons).
"USPAP": The Uniform Standards of Professional Appraisal
Practices.
"Voting Rights": The portion of the voting rights of all of
the Certificates which is allocated to any Certificate. At all times during the
term of this Agreement, 95.0% of the Voting Rights shall be allocated among the
Holders of the various outstanding Classes of Sequential Pay Certificates in
proportion to the respective Class Principal Balances of their Certificates, and
5.0% of the Voting Rights shall be allocated to the Holders of the Class X
Certificates. Voting Rights allocated to a Class of Certificateholders shall be
allocated among such Certificateholders in proportion to the Percentage
Interests evidenced by their respective Certificates.
"Weighted Average Adjusted Net Mortgage Rate": With respect to
any Distribution Date, the weighted average of the respective Adjusted Net
Mortgage Rates for all the Mortgage Loans and REO Loans, weighted on the basis
of the respective Stated Principal Balances of such Mortgage Loans and REO Loans
outstanding immediately prior to such Distribution Date.
"Withheld Amounts": As defined in Section 4.05.
"Workout Fee": With respect to each Corrected Mortgage Loan,
the fee designated as such and payable to the Special Servicer pursuant to the
third paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage
Loan as to which a Workout Fee is payable, 1.0%.
SECTION 1.02 Certain Calculations in Respect of the Mortgage
Pool.
(a) All amounts collected in respect of any Group of
Cross-Collateralized Mortgage Loans in the form of payments from Mortgagors,
Insurance Proceeds and Liquidation Proceeds, shall be applied by the Master
Servicer among such Mortgage Loans in accordance with the express provisions of
the related loan documents and, in the absence of such express provisions, on a
pro rata basis in accordance with the respective amounts then "due and owing" as
to each of the Mortgage Loans constituting such Group. All amounts collected in
respect of or allocable to any particular individual Mortgage Loan (whether or
not such Mortgage Loan is a Cross-Collateralized Mortgage Loan) in the form of
payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds shall be
applied for purposes of this Agreement (including, without limitation, for
purposes of determining distributions on the Certificates pursuant to Article IV
and additional compensation payable to the Master Servicer, the Special Servicer
and any Sub-Servicers) as follows: first, as a recovery of any related
unreimbursed Servicing Advances and, if applicable, unpaid Liquidation Expenses;
second, as a recovery of accrued and unpaid interest (excluding, in the case of
a Hyper-Amortization Loan after its Anticipated Repayment Date, Additional
Interest) at the related Mortgage Rate on such Mortgage Loan to but not
including, as appropriate, the date of receipt or, in the case of a full Monthly
Payment from any Mortgagor, the related Due Date; third, as a recovery of
principal of such Mortgage Loan then due and owing, including, without
limitation, by reason of acceleration of the Mortgage Loan following a default
thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage
Loan, as a recovery of principal to the extent of its entire remaining unpaid
principal balance); fourth, as a recovery of amounts to be currently applied to
the payment of, or escrowed for the future payment of, real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items;
fifth, as a recovery of Reserve Funds to the extent then required to be held in
escrow; sixth, as a recovery of any Prepayment Premium then due and owing under
such Mortgage Loan; seventh, as a recovery of any Default Charges then due and
owing under such Mortgage Loan; eighth, as a recovery of any assumption fees and
modification fees then due and owing under such Mortgage Loan; ninth, as a
recovery of any other amounts then due and owing under such Mortgage Loan other
than remaining unpaid principal; tenth, as an early recovery of any remaining
principal of such Mortgage Loan to the extent of its entire remaining unpaid
principal balance; and, eleventh, in the case of a Hyper-Amortization Loan after
its Anticipated Repayment Date, as a recovery of accrued and unpaid Additional
Interest on such Hyper-Amortization Loan, to but not including the date of
receipt. The Master Servicer shall, to the fullest extent permitted by
applicable law and the related Mortgage Loan documents, apply all payments on
and proceeds of each Mortgage Loan to amounts actually due and owing from the
related Mortgagor in a manner consistent with the foregoing and shall maintain
accurate records of how all such payments and proceeds are actually applied and
are applied for purposes of this Agreement.
(b) Collections in respect of each REO Property (exclusive of
amounts to be applied to the payment of the costs of operating, managing,
maintaining and disposing of such REO Property) shall be applied for purposes of
this Agreement (including, without limitation for purposes of determining
distributions on the Certificates pursuant to Article IV and additional
compensation payable to the Master Servicer, the Special Servicer and any
Sub-Servicers) as follows: first, as a recovery of any related unreimbursed
Servicing Advances; second, as a recovery of accrued and unpaid interest
(excluding, in the case of an REO Loan that relates to a Hyper-Amortization Loan
after its Anticipated Repayment Date, Additional Interest) on the related REO
Loan at the related Mortgage Rate to but not including the Due Date in the
Collection Period of receipt; third, as a recovery of principal of the related
REO Loan to the extent of its entire unpaid principal balance; fourth, as a
recovery of any Prepayment Premium then due and owing under such REO Loan;
fifth, as a recovery of any other amounts (including, without limitation,
Default Charges) deemed to be due and owing in respect of the related REO Loan;
and, sixth, in the case of an REO Loan that relates to a Hyper-Amortization Loan
after its Anticipated Repayment Date, as a recovery of accrued and unpaid
Additional Interest on such REO Loan to but not including the date of receipt.
(c) For the purposes of calculating distributions pursuant to
this Agreement, Additional Interest on a Hyper-Amortization Loan shall be deemed
not to constitute principal or any portion thereof and shall not be added to the
unpaid principal balance or Stated Principal Balance of such Hyper-Amortization
Loan. To the extent any Additional Interest is not paid on a current basis, it
shall be deemed to be deferred interest.
(d) Insofar as amounts received in respect of any Mortgage
Loan or REO Property and allocable to fees and charges owing in respect of such
Mortgage Loan or the related REO Loan, as the case may be, that constitute
additional servicing compensation payable to the Master Servicer and/or Special
Servicer pursuant to Section 3.11, are insufficient to cover the full amount of
such fees and charges, such amounts shall be allocated between such of those
fees and charges as are payable to the Master Servicer, on the one hand, and
such of those fees and charges as are payable to the Special Servicer, on the
other, pro rata in accordance with their respective entitlements, and such
payments so made shall constitute the sole amount that will be paid to the
Master Servicer and the Special Servicer with respect thereto.
(e) The foregoing applications of amounts received in respect
of any Mortgage Loan or REO Property shall be determined by the Master Servicer
and reflected in the reports to be delivered thereby pursuant to Section
4.02(b).
SECTION 1.03 Incorporation of Preliminary Statement.
The parties hereto acknowledge that the Preliminary Statement
at the beginning of this Agreement constitutes a part of this Agreement.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common
law trust be established pursuant to this Agreement. Norwest Bank Minnesota,
National Association, is hereby appointed, and does hereby agree to act, as
Trustee hereunder and, in such capacity, to hold the Trust Fund in trust for the
exclusive use and benefit of all present and future Certificateholders. It is
not intended that this Agreement create a partnership or a joint-stock
association.
(b) Each of the NB Owner Trust and, at the direction of the
Depositor given pursuant to the Mortgage Loan Purchase and Sale Agreement, the
Mortgage Loan Seller, concurrently with its execution and delivery hereof, does
hereby assign, transfer, sell and otherwise convey to the Trustee without
recourse for the benefit of the Certificateholders all the right, title and
interest of the NB Owner Trust and the Mortgage Loan Seller, respectively, in,
to and under the Mortgage Loans identified on the Mortgage Loan Schedule and all
other assets included or to be included in REMIC I. Such assignment includes (i)
the Mortgage Loans as from time to time are subject to this Agreement and all
payments under and proceeds of such Mortgage Loans received or receivable after
the Cut-off Date (other than payments of principal, interest and other amounts
due and payable on the Mortgage Loans on or before the Cut-off Date and rights
to the Participant Retained Interest), together with all documents delivered or
caused to be delivered hereunder with respect to such Mortgage Loans by the
Mortgage Loan Seller; (ii) any REO Property acquired in respect of a Mortgage
Loan; and (iii) such funds or assets as from time to time are deposited in the
Certificate Account, the Distribution Account, the REMIC II Distribution
Account, the Interest Reserve Account and the REO Account (if established).
It is intended that the conveyance of the Mortgage Loans and
the related rights and property by the NB Owner Trust and the Mortgage Loan
Seller to the Trustee, as provided in this Section be, and be construed as, an
absolute transfer of the Mortgage Loans to the Trustee for the benefit of the
Certificateholders. It is, further, not intended that such conveyance be deemed
a pledge of the Mortgage Loans to the Trustee to secure a debt or other
obligation of the NB Owner Trust or the Mortgage Loan Seller, as the case may
be. However, in the event that the Mortgage Loans are held to be property of the
NB Owner Trust or the Mortgage Loan Seller, or if for any reason this Agreement
is held or deemed to create a security interest in the Mortgage Loans, then it
is intended that, (i) this Agreement shall also be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the New York Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; (ii) the conveyance provided for in this Section shall be deemed
to be a grant by the NB Owner Trust and the Mortgage Loan Seller to the Trustee,
for the benefit of the Certificateholders, of a security interest in all of
their respective right (including the power to convey title thereto), title and
interest, whether now owned or hereafter acquired, in and to (A) the Mortgage
Notes, the Mortgages, any related insurance policies and all other documents in
the related Mortgage Files, (B) all amounts payable to the holders of the
Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the
conversion, voluntary or involuntary, of the foregoing into cash, instruments,
securities or other property, including without limitation all amounts from time
to time held or invested in the Certificate Account, the Distribution Account,
the REMIC II Distribution Account, the Interest Reserve Account or the REO
Account, whether in the form of cash, instruments, securities or other property;
(iii) the possession by the Trustee or its agent of the Mortgage Notes and such
other items of property as constitute instruments, money, negotiable documents
or chattel paper shall be deemed to be "possession by the secured party" or
possession by a purchaser or a Person designated by such secured party, for
purposes of perfecting the security interest pursuant to the New York Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction (including, without limitation, Section 9-305 or 9-115 thereof);
and (iv) notifications to, and acknowledgments, receipts or confirmations from,
Persons holding such property shall be deemed to be notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law. The NB Owner Trust, the Mortgage
Loan Seller and the Trustee shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement. At the Depositor's direction, the Trustee shall execute and deliver,
and the Master Servicer shall (at its expense) file, all filings necessary to
maintain the effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect and maintain the
Trustee's security interest in or lien on the Trust Fund, including without
limitation (A) continuation statements and (B) such other statements as may be
occasioned by any transfer of any interest of the Trustee, the Master Servicer,
the Special Servicer or the Depositor in the Trust Fund. In connection herewith,
the Trustee shall have all of the rights and remedies of a secured party and
creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
(c) In connection with the assignment pursuant to subsection
(b) above, the Mortgage Loan Seller (at the direction of the Depositor or the NB
Owner Trust, as the case may be, pursuant to the Mortgage Loan Purchase and Sale
Agreement) shall deliver to and deposit with, or cause to be delivered to and
deposited with, the Trustee or a Custodian appointed thereby (with a copy to the
Master Servicer), on or before the Closing Date, the Mortgage File for each
Mortgage Loan so assigned by the Mortgage Loan Seller hereunder. If the Mortgage
Loan Seller is unable to deliver or cause the delivery of any original Mortgage
Note, it may deliver a copy of such Mortgage Note, together with a lost note
affidavit, and shall thereby be deemed to have satisfied the document delivery
requirements of this Section 2.01(c). If the Mortgage Loan Seller cannot so
deliver, or cause to be delivered, as to any Mortgage Loan, the original or a
copy of any of the documents and/or instruments referred to in clauses (ii),
(iv), (viii), (xi)(A) and (xii) of the definition of "Mortgage File", with
evidence of recording or filing (as the case may be) thereon, solely because of
a delay caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, as the case may be, the
delivery requirements of this Section 2.01(c) shall be deemed to have been
satisfied as to such missing item, and such missing item shall be deemed to have
been included in the related Mortgage File, provided that a copy of such
document or instrument (without evidence of recording or filing thereon, but
certified (which certificate may relate to multiple loans, documents and/or
instruments) by the Mortgage Loan Seller to be a true and complete copy of the
original thereof submitted for recording or filing, as the case may be) is
delivered to the Trustee or a Custodian appointed thereby on or before the
Closing Date, and either the original of such missing document or instrument, or
a copy thereof, with evidence of recording or filing, as the case may be,
thereon, is delivered to the Trustee or such Custodian within 180 days of the
Closing Date (or within such longer period after the Closing Date as the Trustee
may consent to, which consent shall not be unreasonably withheld so long as the
Mortgage Loan Seller has provided the Trustee with evidence of such submission
for recording or filing, as the case may be, or has certified to the Trustee as
to the occurrence of such submission for recording or filing, as the case may
be, and is, as certified to the Trustee no less often than monthly, in good
faith attempting to obtain from the appropriate recording or filing office such
original or copy). If the Mortgage Loan Seller cannot or does not so deliver, or
cause to be delivered, as to any Mortgage Loan, the original of any of the
documents and/or instruments referred to in clauses (iii), (v), and (xi)(B) of
the definition of "Mortgage File", because such document or instrument has been
delivered for recording or filing, as the case may be, the delivery requirements
of this Section 2.01(c) shall be deemed to have been satisfied as to such
missing item, and such missing item shall be deemed to have been included in the
related Mortgage File, provided that a copy of such document or instrument
(without evidence of recording or filing thereon, but certified (which
certificate may relate to multiple documents and/or instruments) by the Mortgage
Loan Seller to be a true and complete copy of the original thereof submitted for
recording or filing, as the case may be) is delivered to the Trustee or a
Custodian appointed thereby on or before the Closing Date, and either the
original of such missing document or instrument, or a copy thereof, with
evidence of recording or filing, as the case may be, thereon, is delivered to
the Trustee or such Custodian within 180 days of the Closing Date (or within
such longer period after the Closing Date as the Trustee may consent to, which
consent shall not be unreasonably withheld so long as the Mortgage Loan Seller
has provided the Trustee with evidence of such submission for recording or
filing, as the case may be, or has certified to the Trustee as to the occurrence
of such submission for recording or filing, as the case may be, and is, as
certified to the Trustee no less often than monthly, in good faith attempting to
obtain from the appropriate recording or filing office such original or copy).
If the Mortgage Loan Seller cannot so deliver, or cause to be delivered, as to
any Mortgage Loan, the original or a copy of the related lender's title
insurance policy referred to in clause (ix) of the definition of "Mortgage File"
solely because such policy has not yet been issued, the delivery requirements of
this Section 2.01(c) shall be deemed to be satisfied as to such missing item,
and such missing item shall be deemed to have been included in the related
Mortgage File, provided that the Mortgage Loan Seller shall have delivered to
the Trustee or a Custodian appointed thereby, on or before the Closing Date, a
commitment for title insurance "marked-up" at the closing of such Mortgage Loan,
and the Mortgage Loan Seller shall deliver to the Trustee or such Custodian,
promptly following the receipt thereof, the original related lender's title
insurance policy (or a copy thereof). In addition, notwithstanding anything to
the contrary contained herein, if there exists with respect to any Group of
related Cross-Collateralized Mortgage Loans only one original of any document
referred to in the definition of "Mortgage File" covering all the Mortgage Loans
in such Group, then the inclusion of the original of such document in the
Mortgage File for any of the Mortgage Loans in such Group shall be deemed an
inclusion of such original in the Mortgage File for each such Mortgage Loan.
None of the Trustee, any Custodian, the Depositor, the Master Servicer or the
Special Servicer shall in any way be liable for any failure by the Mortgage Loan
Seller to comply with the delivery requirements of this Section 2.01(c).
If any of the endorsements referred to in clause (i) of the
definition of "Mortgage File", any of the assignments of Mortgage referred to in
clause (iii) of the definition of "Mortgage File", any of the assignments of
Assignment of Leases referred to in clause (v) of the definition of "Mortgage
File", or any of the assignments of Security Agreement referred to in clause
(vii) of the definition of "Mortgage File" are delivered to the Trustee in
blank, the Trustee shall (without being obligated to record or file such) be
responsible for completing the related endorsement or assignment in the name of
the Trustee (in such capacity).
(d) The Mortgage Loan Seller shall, as to each Mortgage Loan,
at its own expense, promptly (and in any event within 45 days of the Closing
Date, unless recording/filing information is not available by such time for
assignments solely due to recorder's office delay, in which case such submission
shall be made promptly after such information does become available from the
recorder's office) submit or cause to be submitted for recording or filing, as
the case may be, in the appropriate public office for real property records or
UCC Financing Statements, as appropriate, each assignment referred to in clauses
(iii) and (v) of the definition of "Mortgage File" and each UCC-1, UCC-2 and
UCC-3, if any, referred to in clause (xi)(B) of the definition of "Mortgage
File". Each such assignment shall reflect that it should be returned by the
public recording office to the Trustee following recording, and each such UCC-1,
UCC-2 and UCC-3 shall reflect that the file copy thereof should be returned to
the party responsible for filing and forwarding the document to the Trustee
following filing. At such time as such assignments, UCC-1s, UCC-2s and UCC-3s
have been returned to the Trustee, the Trustee shall promptly forward a copy of
each thereof to the Master Servicer. If any such document or instrument is lost
or returned unrecorded or unfiled, as the case may be, because of a defect
therein, the Mortgage Loan Seller shall promptly prepare or cause the
preparation of a substitute therefor or cure or cause the curing of such defect,
as the case may be, and thereafter the Mortgage Loan Seller shall, at its own
expense, submit the substitute or corrected documents or cause such to be
submitted for recording or filing, as appropriate.
(e) All documents and records in the Mortgage Loan Seller's
possession (or under its control) relating to the Mortgage Loans (except
attorney-client privileged communications or confidential internal credit
analysis of the client) that are not required to be a part of a Mortgage File in
accordance with the definition thereof, together with all Escrow Payments and
Reserve Funds in the possession of the Mortgage Loan Seller (or under its
control) with respect to the Mortgage Loans, shall be delivered or caused to be
delivered by the Mortgage Loan Seller to the Master Servicer, within 10 days of
the Closing Date, and shall be retained by the Master Servicer on behalf of the
Trustee in trust for the benefit of the Certificateholders.
(f) The Mortgage Loan Seller shall, as to each Mortgage Loan
which is secured by the interest of the related Mortgagor under a Ground Lease,
at its own expense, promptly (and in any event within 45 days of the Closing
Date) notify the related ground lessor of the transfer of such Mortgage Loan to
the Trust pursuant to this Agreement and inform such ground lessor that any
notices of default under the related Ground Lease should thereafter be forwarded
to the Trustee.
(g) In connection with its assignment of Mortgage Loans
hereunder, each of the Mortgage Loan Seller and the NB Owner Trust hereby
expressly assigns to the Trustee for the benefit of the Certificateholders any
and all rights the Mortgage Loan Seller or the NB Owner Trust may have with
respect to representations and warranties made by an NB Conduit Originator with
respect to any Mortgage Loan under the mortgage loan purchase agreement between
the Mortgage Loan Seller and the NB Conduit Originator that originated such
Mortgage Loan pursuant to which the Mortgage Loan Seller originally acquired
such Mortgage Loan from such NB Conduit Originator. In the event such Mortgage
Loan is repurchased by the Mortgage Loan Seller, the Trustee shall re-assign
such rights under the relevant mortgage loan purchase agreement to the Mortgage
Loan Seller in respect of such Mortgage Loan.
SECTION 2.02 Acceptance of REMIC I by Trustee.
(a) The Trustee, by the execution and delivery of this
Agreement, acknowledges receipt by it or a Custodian on its behalf, subject to
any exceptions noted on the Schedule of Exceptions to Mortgage File Delivery
attached hereto as Schedule VIII, to the provisions of Section 2.01 and to the
further review provided for in this Section 2.02, of, with respect to each
Mortgage Loan, an original Mortgage Note endorsed to the Trustee, an original or
a copy of the Mortgage (with evidence of recording thereon), and an original
assignment of such Mortgage executed in favor of the Trustee (in such capacity),
in good faith and without notice of any adverse claim, and declares that it or a
Custodian on its behalf holds and will hold the documents delivered or caused to
be delivered by the Mortgage Loan Seller in respect of the Mortgage Loans, and
that it holds and will hold all other assets included in REMIC I, in trust for
the exclusive use and benefit of all present and future Certificateholders.
(b) Within 60 days of the Closing Date (or, in the case of any
Mortgage Loan as to which a Servicing Transfer Event has occurred during such
60-day period of which event the Trustee has notice, within the shorter of 60
days of the Closing Date and five Business Days of the Trustee's receiving such
notice), the Trustee or a Custodian on its behalf shall review each of the
documents delivered or caused to be delivered by the Mortgage Loan Seller with
respect to each Mortgage Loan pursuant to Section 2.01(c); and, promptly
following such review, the Trustee shall, subject to Section 2.02(d), certify in
writing (substantially in the form of Exhibit I) to each of the Depositor, the
Master Servicer, the Special Servicer and the Mortgage Loan Seller that as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage
Loan paid in full or otherwise liquidated), and except as specifically
identified in any exception report annexed to such certification, (i) all
documents specified in clauses (i) through (iii), (ix) and, if the Mortgage Loan
Schedule specifies that the related Mortgagor has a leasehold interest in the
related Mortgaged Property, (xiii) of the definition of "Mortgage File" are in
its possession or the possession of a Custodian on its behalf, or the Mortgage
Loan Seller has otherwise satisfied the delivery requirements in respect of such
documents in accordance with Section 2.01(c), (ii) all documents received by it
or any Custodian in respect of such Mortgage Loan have been reviewed by it or by
a Custodian on its behalf and appear regular on their face and relate to such
Mortgage Loan, and (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (ii) (except with respect to ZIP codes), (iv)
and (vi)(B) of the definition of "Mortgage Loan Schedule" is correct and the
Mortgage Rate set forth in clause (iii)(a) of the definition of "Mortgage Loan
Schedule" matches the Mortgage Rate in effect on the date of origination or of
the most recent written amendment to such Mortgage Rate which is contained in
the Mortgage File.
(c) The Trustee or a Custodian on its behalf shall review each
of the documents relating to the Mortgage Loans received thereby subsequent to
the Closing Date; and, on or about the first anniversary of the Closing Date,
the Trustee shall, subject to Section 2.02(d), certify in writing (substantially
in the form of Exhibit J) to each of the Depositor, the Master Servicer, the
Special Servicer and the Mortgage Loan Seller that as to each Mortgage Loan
listed on the Mortgage Loan Schedule (other than any Mortgage Loan paid in full
or otherwise liquidated), and except as specifically identified in any exception
report annexed to such certification, (i) all documents specified in clauses
(i), (ii), (ix) and, if the Mortgage Loan Schedule specifies that the related
Mortgagor has a leasehold interest in the related Mortgaged Property, (xiii) of
the definition of "Mortgage File" are in its possession or the possession of a
Custodian on its behalf, or the Mortgage Loan Seller has otherwise satisfied the
delivery requirements in respect of such documents in accordance with Section
2.01(c), (ii) it or a Custodian on its behalf has received either the original
or copy of each of the assignments specified in clauses (iii) and (v) of the
definition of "Mortgage File" that were delivered by the Mortgage Loan Seller
with evidence of recording thereon, (iii) all documents received by it or any
Custodian in respect of such Mortgage Loan have been reviewed by it or by such
Custodian on its behalf and appear regular on their face and relate to such
Mortgage Loan, and (iv) based on the examinations referred to in subsection (b)
above and this subsection (c) and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses (ii) (except with respect to ZIP codes), (iv) and (vi)(B)
of the definition of "Mortgage Loan Schedule", is correct and the Mortgage Rate
set forth in clause (iii)(a) of the definition of "Mortgage Loan Schedule"
matches the Mortgage Rate in effect on the date of origination or of the most
recent written amendment to such Mortgage Rate which is contained in the
Mortgage File.
(d) It is herein acknowledged that, notwithstanding any other
provision hereof, neither the Trustee nor any Custodian is under any duty or
obligation (i) to determine whether any of the documents specified in clauses
(iv) through (viii), (x) through (xii) and (xiv) through (xx) of the definition
of "Mortgage File" exist or are required to be delivered by the Mortgage Loan
Seller in respect of any Mortgage Loan or (ii) to inspect, review or examine any
of the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are genuine,
enforceable, in recordable form or appropriate for the represented purpose, or
that they are other than what they purport to be on their face.
(e) If, in the process of reviewing the documents delivered or
caused to be delivered by the Mortgage Loan Seller pursuant to Section 2.01(c),
the Trustee or any Custodian discovers that any document required to have been
delivered pursuant to Section 2.01(c) has not been so delivered, or discovers
that any of the documents that were delivered has not been properly executed,
contains information that does not conform in any material respect with the
corresponding information set forth in the Mortgage Loan Schedule, or is
defective on its face (each, including, without limitation, that a document is
missing, a "Document Defect"), or if, at any other time, the Trustee or any
other party hereto discovers a Document Defect in respect of any Mortgage Loan,
the party discovering such Document Defect shall promptly so notify each of the
other parties hereto. If and when such party is notified of or discovers any
error in the Mortgage Loan Schedule, the Mortgage Loan Seller shall promptly
correct such error and distribute a new, corrected Mortgage Loan Schedule to
each of the other parties hereto. Such new, corrected Mortgage Loan Schedule
shall be deemed to amend and replace the existing Mortgage Loan Schedule.
SECTION 2.03 Mortgage Loan Seller's Repurchase of Mortgage
Loans for Document Defects and Certain Breaches
of Representations and Warranties.
(a) Within 90 days of the earlier of discovery or receipt of
written notice by the Mortgage Loan Seller, of a Document Defect in respect of
any Mortgage Loan or a breach of any representation or warranty set forth in
Section 2.05(c) in respect of any Mortgage Loan, which Document Defect or
breach, as the case may be, as determined by the Trustee, subject to Sections
8.01 and 8.02 and its right to reimbursement pursuant to Section 8.05(b),
materially and adversely affects the value of such Mortgage Loan or the
interests of the Certificateholders therein, the Mortgage Loan Seller shall cure
such Document Defect or breach, as the case may be, in all material respects or
repurchase (or cause an Affiliate to purchase) the affected Mortgage Loan at the
applicable Purchase Price by deposit of such Purchase Price into the Certificate
Account and delivery to the Trustee and the Master Servicer of a written
certification that such deposit has been made. However, if such Document Defect
or breach is capable of being cured but not within the 90 day period and the
Mortgage Loan Seller has commenced and is diligently proceeding with the cure of
such Document Defect or breach within such 90 day period (as evidenced by an
Officer's Certificate of the Mortgage Loan Seller delivered to the Trustee and
the Master Servicer setting forth the circumstances surrounding such delay, the
measures being undertaken to cure such Document Defect or breach and a
representation that it is diligently pursuing such measures), the Mortgage Loan
Seller shall have an additional 90 days to complete such cure (or, failing such
cure, to repurchase the related Mortgage Loan). Notwithstanding the immediately
preceding sentence, within 90 days of the earlier of discovery or receipt of
written notice by the Mortgage Loan Seller that there is a Document Defect or
other breach of the representations and warranties set forth in Section
2.05(c)(xxxi), (lii), (liii) or (liv) (that causes any Mortgage Loan to not
constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of
the Code), the Mortgage Loan Seller shall either cure such defect or breach or
repurchase such Mortgage Loan at the applicable Purchase Price by deposit of
such Purchase Price into the Certificate Account and delivery to the Trustee of
a written certification that such deposit has been made.
(b) In connection with any repurchase of a Mortgage Loan
contemplated by this Section 2.03, the Trustee, the Master Servicer and the
Special Servicer shall each tender or cause to be tendered to the Mortgage Loan
Seller, upon delivery to each of the Trustee, the Master Servicer and the
Special Servicer of a receipt executed by the Mortgage Loan Seller, all portions
of the Mortgage File and other documents and funds pertaining to such Mortgage
Loan possessed by it (or any Custodian or Sub-Servicer on its behalf), and each
document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed or assigned, as the case may be, to or
at the direction of the Mortgage Loan Seller, in the same manner. The form,
sufficiency and expense of all such instruments and certificates shall be the
responsibility of the Mortgage Loan Seller.
(c) This Section 2.03 provides the sole remedies available to
the Certificateholders, or to the Trustee on behalf of the Certificateholders,
respecting any Document Defect or any breach of any representation or warranty
set forth in Section 2.05(c) hereof. If the Mortgage Loan Seller defaults on its
obligations to repurchase any Mortgage Loan in accordance with Section 2.03(a)
hereof, or disputes its obligation to repurchase any Mortgage Loan in accordance
with any such provision, the Trustee shall promptly notify the
Certificateholders and, subject to Sections 8.01 and 8.02 and its right to
reimbursement pursuant to Section 8.05(b), shall take such action as may be
appropriate to enforce such payment or performance, including, without
limitation, the institution and prosecution of appropriate proceedings. If it is
judicially determined or subsequently agreed that the Mortgage Loan Seller is
required to repurchase such Mortgage Loan under Section 2.03(a) hereof, the
Mortgage Loan Seller shall reimburse the Trustee for all necessary and
reasonable costs and expenses incurred in connection with such enforcement, and
otherwise the Trustee's right of reimbursement shall be limited to amounts on
deposit in the Distribution Account from time to time in accordance with Section
8.05(b) and to such other sources of security and indemnity as shall have been
offered to the Trustee by the Certificateholders.
SECTION 2.04 Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of
the other parties to this Agreement and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the
Depositor, and the performance and compliance with the terms of this
Agreement by the Depositor, will not violate the Depositor's
certificate of incorporation or bylaws or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets.
(iii) The Depositor has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Depositor, enforceable against the
Depositor in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with
the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Depositor's good faith
and reasonable judgment, is likely to affect materially and adversely
either the ability of the Depositor to perform its obligations under
this Agreement or the financial condition of the Depositor.
(vi) The transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any
such approvals as have been obtained, and is not subject to any bulk
transfer or similar law in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the
Depositor's knowledge, threatened against the Depositor which would
prohibit the Depositor from entering into this Agreement or, in the
Depositor's good faith and reasonable judgment, is likely to materially
and adversely affect either the ability of the Depositor to perform its
obligations under this Agreement or the financial condition of the
Depositor.
(viii) Assuming the accuracy of the representation and
warranty of the Mortgage Loan Seller made pursuant to Section
2.05(c)(i) hereof, immediately prior to the transfer of the Mortgage
Loans by the Depositor to the Trustee hereunder, the Depositor had good
and marketable title to, and was the sole owner of, each such Mortgage
Loan (except with respect to the Participant Retained Interest), free
and clear of any and all liens, encumbrances and other interests on, in
or to such mortgage Loan (other than, in certain cases, the right of a
sub-servicer to primary service such Mortgage Loan subject to Section
3.22 hereof).
(b) Upon discovery by any of the parties hereto of a breach of
any of the foregoing representations and warranties which materially and
adversely affects the interests of the Certificateholders or any party hereto,
the party discovering such breach shall give prompt written notice to each of
the other parties hereto.
SECTION 2.05 Representations and Warranties of the Mortgage
Loan Seller.
(a) The Mortgage Loan Seller hereby represents and warrants to
the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The Mortgage Loan Seller is a national banking association
duly organized, validly existing and in good standing under the laws of
the United States. The NB Owner Trust is a business trust duly
organized, validly existing and in good standing under the laws of the
State of Delaware.
(ii) The execution and delivery of this Agreement by the
Mortgage Loan Seller and the NB Owner Trust, and the performance and
compliance with the terms of this Agreement by the Mortgage Loan Seller
and the NB Owner Trust, will not violate the Mortgage Loan Seller's or
the NB Owner Trust's organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) Each of the Mortgage Loan Seller and the NB Owner Trust
has the full power and authority to enter into and consummate all
transactions contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Mortgage Loan Seller and the NB
Owner Trust, enforceable against each of the Mortgage Loan Seller and
the NB Owner Trust in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) Neither the NB Owner Trust nor the Mortgage Loan Seller is
in violation of, and its execution and delivery of this Agreement and
its performance and compliance with the terms of this Agreement will
not constitute a violation of, any law, any order or decree of any
court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation,
in the Mortgage Loan Seller's good faith and reasonable judgment, is
likely to affect materially and adversely either the ability of the
Mortgage Loan Seller or the NB Owner Trust to perform its obligations
under this Agreement or the financial condition of the Mortgage Loan
Seller or the NB Owner Trust.
(vi) No litigation is pending or, to the best of the Mortgage
Loan Seller's knowledge, threatened against the Mortgage Loan Seller or
the NB Owner Trust which would prohibit the Mortgage Loan Seller or the
NB Owner Trust from entering into this Agreement or, in the Mortgage
Loan Seller's or the NB Owner Trust's good faith and reasonable
judgment, is likely to materially and adversely affect either the
ability of the Mortgage Loan Seller or the NB Owner Trust to perform
its obligations under this Agreement or the financial condition of the
Mortgage Loan Seller or the NB Owner Trust.
(vii) The Sub-Servicing Agreement in place as of the Closing
Date among the Master Servicer, ARCS Commercial Mortgage Co., L.P., a
California limited partnership, Bank of America NT&SA, Berkshire
Mortgage Finance Corporation, First Security Bank, N.A., L.J. Melody &
Company, Patrician Financial Company Limited Partnership and WMF
Washington Mortgage Corp. complies with the requirements of this
Agreement in all material respects.
(b) [Reserved]
(c) The Mortgage Loan Seller hereby represents and warrants
with respect to each Mortgage Loan, to the other parties hereto and for the
benefit of the Certificateholders, as of the date hereinbelow specified or, if
no such date is specified, as of the Closing Date, that:
(i) Immediately prior to the transfer thereof by the Mortgage
Loan Seller or the NB Owner Trust to the Trustee, the Mortgage Loan
Seller or the NB Owner Trust, as the case may be, had good and
marketable title to, and was the sole owner and holder of, such
Mortgage Loan (except with respect to the Participant Retained
Interest), free and clear of any and all liens, encumbrances and other
interests on, in or to such Mortgage Loan (other than, in certain
cases, the right of a sub-servicer to primary service such Mortgage
Loan subject to Section 3.22 hereof).
(ii) The Mortgage Loan Seller or the NB Owner Trust, as the
case may be, had full right and authority to sell, assign and transfer
such Mortgage Loan (subject, in the case of the Mortgage Loan secured
by the Mortgaged Property identified on the Mortgage Loan Schedule as
"Summit Shopping Center," to the Participant Retained Interest) to the
Trustee.
(iii) The information pertaining to such Mortgage Loan set
forth in the Mortgage Loan Schedule was true and correct in all
material respects as of the Cut-off Date.
(iv) Such Mortgage Loan was not, as of the Cut-off Date or at
any time during the twelve-month period prior thereto, 30 days or more
delinquent in respect of any Monthly Payment of principal and/or
interest required thereunder, without giving effect to any applicable
grace period.
(v) Each Mortgage securing such Mortgage Loan constitutes a
valid first lien upon the related Mortgaged Property, including,
without limitation, all buildings located thereon and all fixtures
attached thereto, subject only to (and such Mortgaged Property is free
and clear of all encumbrances and liens having priority over the lien
of such Mortgage, except for) (A) the lien of current real property
taxes and assessments not yet due and payable, (B) covenants,
conditions and restrictions, rights of way, easements and other matters
of public record, (C) the right of tenants (whether under ground
leases, space leases or operating leases) at the Mortgaged Property to
remain following a foreclosure or similar proceeding (provided that
such tenants are performing under such leases), (D) exceptions and
exclusions specifically referred to in the lender's title insurance
policy issued or, as evidenced by a "marked-up" commitment, to be
issued in respect of such Mortgage Loan and (E) if such Mortgage Loan
is cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan (the exceptions set forth in the
foregoing clauses (A), (B), (C), (D), and (E), collectively, "Permitted
Encumbrances"). Such Permitted Encumbrances do not materially interfere
with the security intended to be provided by the related Mortgage(s),
the current use of the related Mortgaged Property, or the ability of
the related Borrower to timely pay in full the principal and interest
on the Mortgage Loan. A UCC Financing Statement has been filed and/or
recorded in all places necessary to permit a valid security interest in
the personal property, granted under such Mortgage; any security
agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates
a valid and enforceable first lien and first priority security interest
on the property described therein (except as enforceability may be
limited by bankruptcy or other laws affecting creditor's rights
generally or by the application of general principles of equity). In
the case of each Mortgage Loan secured by a Mortgaged Property that is
operated as a hotel, the related loan documents contain such provisions
as are necessary, and UCC Financing Statements have been filed as
necessary, in each case to perfect a valid security interest in the
hotel revenues with respect to such Mortgage Loan.
(vi) The lien of each related Mortgage is insured by an ALTA
lender's title insurance policy, or its equivalent as adopted in the
applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of the related Mortgage
Loan, its successors and assigns, as to the first priority lien of the
Mortgage in the original principal amount of the related Mortgage Loan
after all advances of principal, subject only to Permitted Encumbrances
(or, if a title insurance policy has not yet been issued in respect of
any Mortgage Loan, a policy meeting the foregoing description is
evidenced by a commitment for title insurance "marked-up" at the
closing of such loan. The Mortgage Loan Seller or its successors or
assigns are the sole named insureds of such policy, all premiums
thereunder have been paid, such policy is in full force and effect, no
claims have been made under such policy (except with respect to the Air
Liquide Mechanics' Lien), and the Mortgage Loan Seller has no knowledge
of any matter which would impair or diminish the coverage of such
policy. The title insurance company issuing such policy is a
nationally-recognized title insurance company or, to the knowledge of
the Mortgage Loan Seller, is otherwise a title insurance company
qualified to issue such policy in the relevant jurisdiction.
(vii) Neither the Mortgage Loan Seller nor the NB Owner Trust
has waived any material default, breach, violation or event of
acceleration existing under the related Mortgage or Mortgage Note.
(viii) There is no valid offset, defense or counterclaim to
such Mortgage Loan.
(ix) The Mortgage Loan Seller has no actual knowledge (A) that
there is any proceeding pending or threatened for the total or partial
condemnation of the related Mortgaged Property or (B) that there is any
material damage at the related Mortgaged Property that materially and
adversely affects the value of such Mortgaged Property.
(x) At origination, such Mortgage Loan complied in all
material respects with all requirements of federal, state and local
laws, including, without limitation, laws pertaining to usury, relating
to the origination and servicing of such Mortgage Loan.
(xi) The proceeds of such Mortgage Loan have been fully
disbursed, and there is no requirement for future advances thereunder.
(xii) The Mortgage Note and Mortgage(s) for such Mortgage Loan
and all other documents and instruments evidencing, guaranteeing,
insuring or otherwise securing such Mortgage Loan are each the legal,
valid and binding obligation of the maker thereof (subject to any
non-recourse provisions contained in any of the foregoing agreements
and any applicable state anti-deficiency legislation), enforceable in
accordance with their respective terms, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws relating to or affecting the rights of
creditors generally and by general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at
law).
(xiii) Except as noted on Schedule III hereto, the related
Mortgaged Property is: (A) if a commercial property, insured by a fire
and extended perils insurance policy, issued by an insurer meeting the
requirements of such Mortgage Loan in an amount not less than the
greater of (1) the replacement cost and (2) the amount necessary to
avoid the operation of any co-insurance provisions with respect to such
Mortgaged Property, and is also covered (except if such Mortgaged
Property is operated as a mobile home park), by rental insurance in an
amount equal to the gross rentals for at least a 12-month period (or,
in the case of a Mortgaged Property not having an elevator, for at
least a 6-month period), comprehensive general liability insurance
coverage, covering at least $1,000,000 per occurrence and, except in
the case of Mortgage Loans originated by Bank of America NT&SA or as
permitted by the Mortgage Loan Seller's underwriting guidelines, broad
form boiler and machinery insurance; such insurance policy provides
that it shall not be canceled, endorsed, altered or reissued to effect
a change in coverage unless such insurer shall have first given the
mortgagee under such Mortgage Loan thirty days prior written notice,
and no notice has been received as of the date hereof; all premiums
required to be paid on such policy have been paid at least thirty days
prior to the expiration date of such policy, the related Mortgage
requires the Mortgagor to deliver to the mortgagee under the Mortgage
Loan a renewal policy in form and substance satisfactory to the holder
of the Mortgage Loan; the related Mortgage obligates the Mortgagor to
maintain all such insurance and, at the Mortgagor's failure to do so,
authorizes the mortgagee under such Mortgage Loan to purchase such
insurance at the Mortgagor's cost and expense and to seek reimbursement
from such Mortgagor; and (B) if a multifamily property, insured by a
fire and extended perils insurance policy, issued by an insurer meeting
the requirements of such Mortgage Loan and covering rent loss (for at
least a 12-month period or, in the case of a Mortgaged Property not
having an elevator, for at least a 6-month period) comprehensive
general liability insurance coverage, covering at least $1,000,000 per
occurrence, and such other hazards, casualties, liabilities and
contingencies as required by the holder of the Mortgage Loan and in
such amounts and for such periods as required by the holder of the
Mortgage Loan; with regard to all policies, at least ten days prior to
the expiration date of such policy, the related Mortgage requires the
Mortgagor to deliver to the mortgagee under such Mortgage Loan a
renewal policy in form satisfactory to the holder of the Mortgage Loan;
all premiums required to be paid on such policy have been paid; the
Mortgage obligates the related Mortgagor to maintain all such insurance
and, upon such Mortgagor's failure to do so, authorizes the mortgagee
to purchase such insurance at the Mortgagor's cost and expense and to
seek reimbursement from such Mortgagor. In addition, if the related
Mortgaged Property is located in a federally designated special flood
hazard area, the related Mortgagor is required to maintain flood
insurance in respect thereof (exclusive of any parking lot or unused or
undeveloped portion thereof).
(xiv) In connection with or subsequent to the origination of
such Mortgage Loan, one or more Phase I Environmental Assessments (or
an update of a previously conducted assessment) were performed with
respect to the related Mortgaged Property, and the Mortgage Loan
Seller, having made no independent inquiry other than reviewing the
resulting report(s) and/or employing an environmental consultant to
perform the assessment(s) referenced herein, has no knowledge of any
material and adverse environmental condition or circumstance affecting
such Mortgaged Property that was not disclosed in the related
report(s). Except as set forth in Schedule IV hereto, where such
assessments disclosed the existence of such a material condition or
circumstance affecting a Mortgaged Property and recommended that action
be taken, (i) a party not related to the related Mortgagor was
identified as the responsible party for such condition or circumstance,
or (ii) the related Mortgagor was required to obtain an operations and
maintenance plan, or (iii) funds sufficient to effect such action were
escrowed, in each case consistent with any such recommendation and in
accordance with the underwriting standards of the Mortgage Loan Seller.
Each Mortgage requires the related Mortgagor to comply with and to
cause the related Mortgaged Property to be in compliance with all
applicable federal, state and local environmental laws and regulations.
(xv) Except as indicated on the Mortgage Loan Schedule, such
Mortgage Loan is not cross-collateralized with other Mortgage Loans in
the Mortgage Pool. Such Mortgage Loan is not cross-collateralized with
a mortgage loan outside the Mortgage Pool.
(xvi) The terms of the Mortgage Note and Mortgage(s) for such
Mortgage Loan have not been impaired, waived, altered or modified in
any material respect, except as specifically disclosed in the related
Mortgage File.
(xvii) There are no delinquent taxes, ground rents, insurance
premiums, assessments, including, without limitation, assessments
payable in future installments, or other similar outstanding charges
(and, to the actual knowledge of the Mortgage Loan Seller, at
origination of such Mortgage Loan, there were no delinquent water
charges or sewer rents) affecting the related Mortgaged Property.
(xviii) The interest of the Mortgagor in the related Mortgaged
Property consists of a fee simple and/or leasehold interest in all the
real property constituting a part of the Mortgaged Property.
(xix) Such Mortgage Loan is a whole loan and not a
participation interest.
(xx) The assignment of the related Mortgage to the Trustee is
in recordable form and constitutes the legal, valid and binding
assignment of such Mortgage from the relevant assignor to the Trustee,
and the assignment of the related Assignment of Leases, if any, or of
any other agreement executed in connection with such Mortgage Loan to
the Trustee constitutes the legal, valid and binding assignment thereof
from the relevant assignor to the Trustee.
(xxi) All escrow deposits (including capital improvements and
environmental remediation reserves) relating to such Mortgage Loan that
were required to be delivered to the mortgagee under the terms of the
related loan documents, have been received and, to the extent of any
remaining balances of such escrow deposits, are in the possession, or
under the control of the Mortgage Loan Seller or its agents (which
shall include the Master Servicer), and all the Depositor's, the NB
Owner Trust's and the Mortgage Loan Seller's rights with respect
thereto are conveyed hereunder.
(xxii) Except with respect to the mechanics' lien with respect
to an approximately $16,000 amount relating to the Mortgage Loan
secured by the Mortgaged Property identified on the Mortgage Loan
Schedule as "Air Liquide Light Industrial Building" (such Mortgage
Loan, the "Air Liquide Mortgage Loan" and such lien, the "Air Liquide
Mechanics' Lien"), as of the date of origination of such Mortgage Loan
and as of the Closing Date, the related Mortgaged Property was and is
free and clear of any mechanics' and materialmen's liens or liens in
the nature thereof which create a lien equal or prior to that created
by the related Mortgage(s). The amount of the Air Liquide Mechanic's
Lien is insured by the title insurance policy relating to the Air
Liquide Mortgage Loan.
(xxiii) No improvement that was included for the purpose of
determining the appraised value of the related Mortgaged Property at
the time of origination of such Mortgage Loan lies outside the
boundaries and building restriction lines of such property to any
material extent, and no improvements on adjoining properties encroach
upon such Mortgaged Property to any material extent, and no improvement
located on or forming part of such Mortgaged Property is in material
violation of any applicable zoning laws or ordinances (except to the
extent that they may constitute legal non-conforming uses).
(xxiv) To the extent required under applicable law as of the
Closing Date and necessary for the enforceability or collectability of
the Mortgage Loan, the originator of such Mortgage Loan was authorized
to do business in the jurisdiction in which the related Mortgaged
Property is located at all times when it held the Mortgage Loan.
(xxv) There is no material default, breach or event of
acceleration existing under the related Mortgage or Mortgage Note, and
the Mortgage Loan Seller has no actual knowledge of any event (other
than payments due but not yet delinquent) that, with the passage of
time or with notice and the expiration of any grace or cure period,
would constitute such a material default, breach or event of
acceleration; provided, however, that this representation and warranty
does not cover any default, breach or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Mortgage Loan Seller in any of
paragraphs (iv), (xiv), (xvii), (xxi), (xxiii) and (xxix) of this
Section 2.05(c).
(xxvi) If such Mortgage Loan is secured in whole or in part by
the interest of a Mortgagor under a Ground Lease and by the related fee
interest, such fee interest is subordinate to the related Mortgage and
the related Mortgage does not by its terms provide that it will be
subordinated to the lien of any mortgage or any other lien upon such
fee interest.
(xxvii) Such Mortgage Loan does not contain any equity
participation by the lender, provide for any contingent or additional
interest in the form of participation in the cash flow of the related
Mortgaged Property or provide for the negative amortization of
interest, except that, as identified on the Mortgage Loan Schedule,
such Mortgage Loan may provide that during the period commencing on a
specified date and continuing until such Mortgage Loan is paid in full,
additional interest will accrue (and may be compounded) on such
Mortgage Loan and shall be payable only after the outstanding principal
of the Mortgage Loan is paid in full.
(xxviii) No holder of such Mortgage Loan has, to the Mortgage
Loan Seller's knowledge, advanced funds or induced, solicited or
knowingly received any advance of funds from a party other than the
owner of the related Mortgaged Property, directly or indirectly, for
the payment of any amount required by the Mortgage Loan.
(xxix) To the Mortgage Loan Seller's knowledge, based on due
diligence customarily performed in the origination of comparable
mortgage loans, as of the date of origination of such Mortgage Loan,
(A) the related Mortgagor was in possession of all material licenses,
permits and authorizations required by applicable laws for the
ownership and operation of the related Mortgaged Property as it was
then operated and (B) all such licenses, permits and authorizations
were valid and in full force and effect.
(xxx) The related Mortgage(s) or Mortgage Note, together with
applicable state law, contains customary and enforceable provisions
(subject to the exceptions set forth in clauses (c)(v) and (c)(xii)
above) such as to render the rights and remedies of the holders thereof
adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be
provided thereby.
(xxxi) Such Mortgage Loan constitutes a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code (but without
regard to the rule in Treasury Regulations Section 1.860G-2(f)(2) that
treats a defective obligation as a qualified mortgage, or any
substantially similar successor provision).
(xxxii) The Mortgage Loan Seller or the originator of such
Mortgage Loan inspected, or caused to be inspected, the related
Mortgaged Property in connection with the origination of the Mortgage
Loan.
(xxxiii) No fraud with respect to such Mortgage Loan has taken
place on the part of the Mortgage Loan Seller or, to the knowledge of
the Mortgage Loan Seller, any originator, in connection with the
origination of such Mortgage Loan.
(xxxiv) The terms of such Mortgage Loan provide or, at
lender's option, permit, and the terms of this Agreement and any
Sub-Servicing Agreement to which such Mortgage Loan is subject provide
for purposes of calculating distributions on the Certificates and
additional compensation payable to the Master Servicer, the Special
Servicer and any related Sub-Servicer, that payments on and proceeds of
such Mortgage Loan will be applied to principal and interest at the
related Mortgage Rate (excluding, in the case of a Hyper-Amortization
Loan after its Anticipated Repayment Date, Additional Interest) due and
owing at the time such payments or proceeds are received, prior to
being applied to any Default Charges, assumption fees and modification
fees then due and owing.
(xxxv) If such Mortgage Loan is, as of the Closing Date,
subject to a Sub-Servicing Agreement, such Sub-Servicing Agreement
provides that the related Sub-Servicer is not to receive any
sub-servicing compensation with respect to such Mortgage Loan during
any period that such Mortgage Loan is a Specially Serviced Mortgage
Loan or an REO Loan (except for any Termination Strip payable to a
Sub-Servicer in connection with a termination thereof without cause as
contemplated by Section 3.22(d) hereof).
(xxxvi) The servicing and collection practices used with
respect to such Mortgage Loan have been in all material respects legal
and prudent and have met customary standards utilized by prudent
institutional multifamily and commercial mortgage loan servicers.
(xxxvii) Unless the related Mortgaged Property is owner
occupied, the Mortgage File for such Mortgage Loan contains an
Assignment of Leases either as a separate instrument or incorporated
into the related Mortgage, which creates, in favor of the holder, a
valid, perfected and enforceable lien of the same priority as the
related Mortgage, in the property and rights described therein;
provided that the enforceability of such lien is subject to applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws
affecting the enforcement of creditors' rights generally, and by the
application of the rules of equity. The Mortgage Loan Seller has the
full right to assign to the Trustee such Assignment of Leases and the
lien created thereby as described in the immediately preceding
sentence. No Person other than the Mortgagor owns any interest in any
payments due under the related leases.
(xxxviii) If the related Mortgaged Property securing such
Mortgage Loan is encumbered by secured subordinated debt, then either
(A) the subordinate debt constitutes a "cash flow" mortgage loan (that
is, payments are required to be made thereon only to the extent that
certain net cash flow from the related Mortgaged Property (calculated
in accordance with the related loan documents) is sufficient after
payments on such Mortgage Loan have been made and certain expenses have
been paid) or (B) the holder of the subordinate debt has agreed not to
foreclose on the related Mortgaged Property so long as such Mortgage
Loan is outstanding and the Special Servicer on behalf of the Trust is
not pursuing a foreclosure action.
(xxxix) [Reserved].
(xl) In the event fraud was committed by the Mortgagor in
connection with the origination of a Mortgage Loan, such Mortgage Loan
becomes a recourse obligation of the Mortgagor with respect to any
damages resulting from such fraud.
(xli) As of the Closing Date, the related Mortgagor or any
guarantor was not, to the best of the Mortgage Loan Seller's actual
knowledge, a debtor in any state or federal bankruptcy or insolvency
proceeding.
(xlii) [Reserved].
(xliii) The Mortgage Loan Seller has no actual knowledge of
any pending litigation or other legal proceedings involving the related
Mortgagor or the related Mortgaged Property that can reasonably be
expected to materially interfere with the security intended to be
provided by the related Mortgage, the current use of the related
Mortgaged Property, or the current ability of the Mortgaged Property to
generate net operating income sufficient to service the Mortgage Loan.
(xliv) If such Mortgage Loan had a Cut-off Date Balance
greater than 1% of the Initial Pool Balance, then the related Mortgagor
has covenanted in its organizational documents (or its organizational
documents otherwise provide for it) to own no significant asset other
than the related Mortgaged Property, Mortgaged Properties securing
other Mortgage Loans and assets incidental to the ownership and
operation of such Mortgaged Property or Properties. In addition, except
with respect to the Mortgage Loans relating to the Mortgaged Properties
identified on the Mortgage Loan Schedule as "Salisbury Mall" and
"University Center North," if such Mortgage Loan had a Cut-off Date
Balance greater than 1% of the Initial Pool Balance, the related
Mortgagor has covenanted in its organizational documents and/or the
Mortgage Loan documents to be (for so long as such Mortgage Loan is
outstanding) a Single-Purpose Entity. Neither the Mortgage Loan Seller
nor the NB Owner Trust has waived such covenants and has no knowledge
that any such Mortgagor is not in compliance therewith.
(xlv) Except as identified on Schedule V hereto, neither the
related Mortgage Note nor the related Mortgage requires the mortgagee
to release all or any material portion of the related Mortgaged
Property from the lien of the related Mortgage except upon (i) payment
in full of all amounts due under the related Mortgage Loan or (ii) a
substitution of government securities for such Mortgaged Property in a
defeasance complying with paragraph (liv) of this Section 2.05(c).
(xlvi) Except as identified on Schedule VI hereto, such
Mortgage Loan does not permit the related Mortgaged Property to be
encumbered subsequent to the Closing Date by any lien junior to or of
equal priority with, or prior to, the lien of the related Mortgage
without the prior written consent of the holder thereof.
(xlvii) With respect to each Mortgage Loan as to which the
related Mortgaged Property is operated as a nursing home or congregate
care facility:
(A) To the best of the Mortgage Loan Seller's knowledge
(based on due diligence customarily performed by
prudent mortgage lenders), as of the Cut-off Date, the
healthcare facility located on the related Mortgaged
Property and the operator with respect to such facility
had all certificates, licenses and permits required by
applicable law for the operation of such facility and,
to the extent such facility participates in Medicaid,
Medicare or other similar programs, such facility and
operator holds a valid certification for such
participation, appropriate for the level of care
provided at such facility.
(B) To the best of the Mortgage Loan Seller's knowledge
(based on due diligence customarily performed by
prudent mortgage lenders), as of the Cut-off Date, the
related borrower or operator, as the case may be, with
respect to the related Mortgaged Property or its
operation of the related Mortgaged Property, was in
compliance in all material respects with all applicable
federal laws and all applicable laws, regulations,
quality and safety standards and requirements of the
applicable state department of health, and the other
related Mortgage Loan documents require that so long as
the related Mortgage Loan remains outstanding the
related Mortgaged Property shall be operated in
compliance in all material respects with such
applicable laws and requirements.
(C) Except as noted on Schedule VII hereto, the related
Mortgage Loan documents provide that (1) so long as the
related Mortgage Loan remains outstanding, the related
Mortgaged Property shall be operated in such a manner
that the licenses, permits and authorizations shall
remain in full force and effect, (2) without the
lender's consent, the licenses, permits and
authorizations may not be (a) transferred to any
location other than the Mortgaged Property or (b)
pledged as collateral for any other loan or
indebtedness and (3) so long as the related Mortgage
Loan remains outstanding, the borrower may not without
the lender's consent (a) rescind, withdraw, revoke,
amend, modify, supplement or otherwise alter the
nature, tenor or scope of the certificate of need for
the related Mortgaged Property, (b) amend or otherwise
change the related Mortgaged Property's authorized bed
capacity and/or the number of beds approved by the
department of health, (c) replace or transfer all or
any part of any related Mortgaged Property's beds to
another site or location or (d) terminate, materially
modify, or materially amend a lease or management
contract in effect with respect to the related
Mortgaged Property.
(D) As of the date of the origination of such Mortgage
Loan, all cost reports required to be filed under the
Medicare, Medicaid, or other similar programs with
respect to the related Mortgaged Property were filed as
required.
(E) As of the Cut-off Date, the Mortgage Loan Seller has no
actual knowledge that the related borrower or related
operator as the case may be, has failed to file within
the time permitted, including any extensions thereof,
all such Medicare, Medicaid or other similar program
costs reports.
(F) As of the Cut-off Date, the Mortgage Loan Seller has no
actual knowledge that either the related borrower or
operator, as the case may be, with respect to the
related Mortgaged Property or its operation of such
Mortgaged Property (A) is subject to a material audit
adjustment or material decrease in reimbursement with
respect to its participation in any third-party
reimbursement program or (B) has been notified that any
managed care or other third-party reimbursement program
contract is being or has been canceled, not renewed, or
downgraded in any material respect or that any such
action is pending, threatened, or contemplated.
(xlviii) With respect to each Mortgage Loan as to which the
related Mortgaged Property is operated as a franchise restaurant:
(A) As of the Cut-off Date, the term of each Franchise
Restaurant Loan is the shorter of (1) 15 years, (2) the
remaining term of the related franchise agreement or
(3) 10 years inside the expiration of any related
Ground Lease.
(B) As of the Cut-off Date, there are no material defaults
under the related franchise agreement and, to the best
of the Mortgage Loan Seller's knowledge, no pending
defaults, and no upgrades for capital improvements or
other capital intensive items required in order to
maintain the franchise agreement, except those already
reserved for in full in cash.
(xlix) With respect to any Mortgage Loan secured by a Mortgage
constituting a valid first lien on an unencumbered interest of the
Mortgagor as lessee under a Ground Lease of the related Mortgaged
Property, but not by the related fee interest in such Mortgaged
Property, the Mortgage Loan Seller represents and warrants that:
(A) The lessor under such Ground Lease has agreed in
writing and included in the related mortgage file that
the Ground Lease may not be amended, modified, canceled
or terminated without the prior written consent of the
mortgagee;
(B) The Ground Lease is not subject to any liens or
encumbrances superior to, or of equal or lesser
priority with, the Mortgage. The Ground Lease is, and
provides that it shall remain, prior to any Mortgage or
other lien upon the related fee interest;
(C) Under the terms of the Ground Lease and/or the related
Mortgage, any related insurance proceeds or
condemnation award will be applied either (1) to the
repair or restoration of all or part of the related
Mortgaged Property or (2) to the payment of the
outstanding principal balance of the Mortgage Loan,
together with any accrued interest, it being understood
that in respect of a total or substantially total loss
or taking, only option (2) may apply, subject to
applicable law;
(D) Except in the case of the Ground Lease relating to a
portion of the parking area for the Mortgaged Property
relating to the Mortgage Loan identified on the
Mortgage Loan Schedule as "Cabaret Center" (Loan No.
51132; such Ground Lease, the "Cabaret Center Parking
Ground Lease"), the Ground Lease or a memorandum
thereof has been duly recorded, and the ground lease
permits the interest of the lessee thereunder to be
encumbered by the related Mortgage. There has not been
a material change in the terms of the Ground Lease
since its recordation (or, in the case of the Cabaret
Center Parking Ground Lease, its execution), with the
exception of written instruments that are part of the
related Mortgage File;
(E) The related borrower's interest in the Ground Lease is
assignable to the Trustee upon notice to, but without
the consent of, the lessor thereunder (or if any such
consent is required, it has been obtained in writing
prior to the Closing Date) or, in the event that it is
so assigned, it is further assignable by the Trustee
and its successors and assigns upon notice to, but
without a need to obtain the consent of, such lessor;
(F) As of the Closing Date, the Ground Lease is in full
force and effect and no default has occurred under the
Ground Lease and, to the Mortgage Loan Seller's actual
knowledge, there is no existing condition which, but
for the passage of time or the giving of notice, would
result in a default under the terms of the Ground
Lease;
(G) Except with respect to the Cabaret Center Parking
Ground Lease, the Ground Lease requires the lessor
thereunder to enter into a new lease with the lender
upon termination of the ground lease for any reason,
including rejection of the Ground Lease in a bankruptcy
proceeding;
(H) All rights of the mortgagee under such Mortgage Loan
under such Ground Lease and the related Mortgage
(insofar as it relates to the Ground Lease) may be
exercised by or on behalf of such mortgagee;
(I) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially
unreasonable by an institutional investor; and the
lessor thereunder is not permitted to disturb the
possession, interest or quiet enjoyment of any
subtenant of the lessee in the relevant portion of the
related Mortgaged Property subject to such Ground Lease
for any reason, or in any manner, which would
materially and adversely affect the security provided
by the related Mortgage;
(J) Such Ground Lease does not permit any increase in the
amount of rent payable by the lessee thereunder during
the term of the Mortgage Loan;
(K) Either (A) the related ground lessor has subordinated
its interest in the related Mortgaged Property to the
interest of the holder of the Mortgage Loan or (B) the
related ground lessor has granted the holder of the
Mortgage Loan the right to notice and an opportunity to
cure any default or breach by the lessee. Upon the
foreclosure of such Mortgage Loan (or acceptance of a
deed in lieu thereof), the related Ground Lease is
assignable to the mortgagee under the leasehold estate
and its assigns without the consent of the ground
lessor thereunder;
(L) Such Ground Lease has an original term (or an original
term plus one or more optional renewal terms, which,
under all circumstances, may be exercised, and will be
enforceable, by the mortgagee if it takes possession of
such leasehold interest) that extends not less than 10
years beyond the stated maturity of the related
Mortgage Loan; and
(M) As of the origination of such Mortgage Loan, such
Ground Lease was in full force and effect and, to the
Mortgage Loan Seller's actual knowledge, no material
default existed under such Ground Lease.
(l) Such Mortgage Loan was originated by or for a savings and
loan association, savings bank, commercial bank, credit union,
insurance company, or similar institution which is supervised and
examined by a Federal or State authority, or by a mortgagee approved by
the Secretary of Housing and Urban Development pursuant to Sections 203
and 211 of the National Housing Act; each Mortgaged Property consists
of one or more separate tax parcels of real property upon which is
located one or more commercial structures and otherwise meets the
requirements for eligibility under the Secondary Mortgage Market
Enhancement Act of 1984 for commercial property.
(li) With respect to each Mortgage Loan not originated by the
Mortgage Loan Seller:
(A) such Mortgage Loan was underwritten in accordance with
standards established by the Mortgage Loan Seller,
(which standards are the same as the Mortgage Loan
Seller's in all material respects) using application
forms and related credit documents approved by the
Mortgage Loan Seller;
(B) the Mortgage Loan Seller approved each application and
related credit documents before a commitment by the
Mortgage Loan originator was issued, and no such
commitment was issued until the Mortgage Loan Seller
agreed to fund such Mortgage Loan;
(C) the Mortgage Loan was originated by the Mortgage Loan
originator pursuant to an ongoing, standing
relationship with the Mortgage Loan Seller;
(D) the closing documents (which include assignment
documents executed by the Mortgage Loan originator in
favor of the Mortgage Loan Seller at the time of the
closing of the Mortgage Loan) for the Mortgage Loan
were prepared on forms approved by the Mortgage Loan
Seller, and reflect the Mortgage Loan Seller as the
successor and assign to the Mortgage Loan originator;
and
(E) such Mortgage Loan either was actually funded by and
assigned to the Mortgage Loan Seller at the closing
thereof, or was funded initially by the Mortgage Loan
originator at the closing thereof and then acquired by
the Mortgage Loan Seller from such Mortgage Loan
originator pursuant to its ongoing, standing
relationship with the Mortgage Loan Seller.
(lii) (1) such Mortgage Loan is directly secured by a Mortgage
on a commercial property or multifamily residential property, and (2)
the fair market value of the real property securing such Mortgage Loan
was at least equal to 80% of the principal amount of the Mortgage Loan
(a) at origination (or if the Mortgage Loan has been modified in a
manner that constitutes a deemed exchange under Section 1001 of the
Code at a time when the Mortgage Loan was not in default or default
with respect thereto was not reasonably foreseeable, the date of the
last such modification) or (b) at the Closing Date; provided that the
fair market value of the real property interest must first be reduced
by (A) the amount of any lien on the real property interest that senior
to the Mortgage Loan (unless such senior lien also secures a Mortgage
Loan, in which event the computation described in (a) and (b) shall be
made on a aggregated basis) and (B) a proportionate amount of any lien
that is in parity with the Mortgage Loan (unless such other lien
secures a Mortgage Loan that is cross-collateralized with such Mortgage
Loan, in which event the computation described in (a) and (b) shall be
made on an aggregate basis).
(liii) With respect to such Mortgage Loan, any prepayment
premium constitutes a "customary prepayment penalty" within the meaning
of Treasury Regulations Section 1.860G-1(b)(2).
(liv) If such Mortgage Loan contains a provision for any
defeasance of mortgage collateral, such Mortgage Loan permits
defeasance (1) no earlier than two years after the Closing Date, (2)
only with substitute collateral constituting "government securities"
within the meaning of Treasury Regulations Section 1.860G-2(a)(8)(i) in
an amount sufficient to make all scheduled payments under the Mortgage
Note and (3) only to facilitate the disposition of the Mortgaged
Property and not as a part of an arrangement to collateralize a REMIC
offering with obligations that are not real estate mortgages. In
addition, if such Mortgage contains such a defeasance provision, it
provides that the loan be assumed by a Single-Purpose Entity designated
by the holder of the Mortgage Loan and that an opinion be provided to
the effect that such holder has a first priority perfected security
interest in the defeasance collateral. The related mortgage loan
documents enable the lender to charge the expenses associated with
permitting a defeasance to the Mortgagor.
(lv) Under the terms of the related Mortgage, any insurance
proceeds or condemnation award with respect to the Mortgaged Property
will be applied either (1) to the repair or restoration of all or part
of the related Mortgaged Property or (2) to the payment of the
outstanding principal balance of the Mortgage Loan, together with
accrued interest, it being understood that in respect of a total or
substantially total loss or taking, only option (2) may apply.
(lvi) If the related Mortgage is a deed of trust, a trustee,
duly qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the deed of trust,
and no fees or expenses are or will become payable to the trustee under
the deed of trust, except in connection with the sale or release of the
Mortgaged Property following default or payment of the Mortgage Loan.
(lvii) No claims have been made under any title insurance
policy, and to the Mortgage Loan Seller's actual knowledge, no action
has been taken which would materially impair such policy.
(lviii) Each Mortgage Loan originated by the Mortgage Loan
Seller or by one of its approved originators was underwritten
consistent in all material respects with the standards of the Mortgage
Loan Seller as then in effect.
(lix) Except with respect to Mortgage Loans relating to
restaurant franchises, the related Mortgage File contains an Appraisal
of the Mortgaged Property, and such Appraisal and the related appraiser
satisfy the requirements of Title XI of the Federal Institutions,
Reform, Recovery and Enforcement Act of 1989 and the regulations
promulgated thereunder, all as in effect on the date the Mortgage Loan
was originated.
(lx) If such Mortgage Loan is a Hyper-Amortization Loan, it
commenced amortizing on its initial scheduled Due Date and provides
that: (i) its Mortgage Rate will increase to no more than the greater
of (A) the original Mortgage Rate plus two percentage points or (B) the
interest rate applicable for certain non-callable U.S. treasury
obligations of comparable terms (as more specifically described in the
related Mortgage Note) plus two percentage points in connection with
the passage of its Anticipated Repayment Date; (ii) its Anticipated
Repayment Date is not less than seven years following the origination
of such Mortgage Loan; (iii) any cash flow from the related Mortgaged
Property that is applied to amortize such Mortgage Loan following its
Anticipated Repayment Date shall, to the extent such net cash flow is
in excess of the Monthly Payment payable therefrom, be net of budgeted
and discretionary (servicer approved) capital expenditures; and (iv) if
the property manager for the related Mortgaged Property can be removed
by or at the direction of the lender on the basis of a debt service
coverage test, the subject debt service coverage ratio shall be
calculated without taking account of any increase in the related
Mortgage Rate on such Mortgage Loan's Anticipated Repayment Date. No
Hyper-Amortization Loan provides that the property manager for the
related Mortgaged Property can be removed by or at the direction of the
lender solely because of the passage of the related Anticipated
Repayment Date.
(lxi) Except to the extent releases are required or expressly
contemplated by the related Mortgage Loan documents or in a writing
contained in the related Mortgage File, the Mortgage Loan Seller has
not satisfied, canceled, rescinded or subordinated the Mortgage in
whole or in part, released the Mortgaged Property in whole or in part
from the lien of the Mortgage, or executed any instrument that would
effect any such satisfaction, cancellation, rescission, subordination
or release.
(lxii) Each Mortgage contains a "due on sale" clause which
expressly or effectively provides for the acceleration of the payment
of the unpaid principal balance and accrued interest of the related
Mortgage Loan if, without the prior written consent of the holder of
such Mortgage, the related Mortgaged Property, or any interest therein,
is directly or indirectly transferred or sold (other than by reason of
family and estate planning transfers and transfers of less than a
controlling interest in a Mortgagor, or a substitution or release of
collateral within the parameters of paragraph (xlv) above.
(d) It is understood and agreed that the representations and
warranties set forth in this Section 2.05 shall survive delivery of the
respective Mortgage Files to the Trustee or a Custodian on its behalf and shall
inure to the benefit of the Persons for whose benefit they were made for so long
as the Trust remains in existence, notwithstanding any restrictive or qualified
endorsement or assignment. Upon discovery by any of the parties hereto of a
breach of any of the representations and warranties set forth in subsection (a)
above which materially and adversely affects the interests of the
Certificateholders or any party hereto or a breach of any of the representations
and warranties set forth in subsection (c) above which materially and adversely
affects the value of any Mortgage Loan or the interests therein of the
Certificateholders, the party discovering such breach shall give prompt written
notice to each of the other parties hereto.
SECTION 2.06 Representations and Warranties of the Master
Servicer.
(a) The Master Servicer hereby represents and warrants to the
other parties hereto and for the benefit of the Certificateholders, as of the
Closing Date, that:
(i) The Master Servicer is duly organized, validly existing
and in good standing as a limited liability company under the laws of
the State of Delaware, and the Master Servicer is in compliance with
the laws of each State in which any Mortgaged Property is located to
the extent necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the
Master Servicer, and the performance and compliance with the terms of
this Agreement by the Master Servicer, will not violate the Master
Servicer's organizational documents or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, which default, in the Master Servicer's good faith
and reasonable judgment, is likely to materially and adversely affect
either the ability of the Master Servicer to perform its obligations
under this Agreement or the financial condition of the Master Servicer.
(iii) The Master Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Master Servicer, enforceable
against the Master Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally, and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law.
(v) The Master Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or
any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Master
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Master Servicer to
perform its obligations under this Agreement or the financial condition
of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which
would prohibit the Master Servicer from entering into this Agreement
or, in the Master Servicer's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability of the
Master Servicer to perform its obligations under this Agreement or the
financial condition of the Master Servicer.
(vii) Each officer or employee of the Master Servicer that has
responsibilities concerning the servicing and administration of the
Mortgage Loans is covered by errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(c). None of the
Master Servicer or any of its officers or employees that is involved in
the servicing or administration of the Mortgage Loans has been refused
such coverage or insurance.
(b) The representations and warranties of the Master Servicer
set forth in Section 2.06(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties which
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Master Servicer (if any) shall be deemed to
have made, as of the date of its succession, each of the representations set
forth in Section 2.06(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 2.06(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 2.07 Representations and Warranties of the Special
Servicer.
(a) The Special Servicer hereby represents and warrants to the
other parties hereto and for the benefit of the Certificateholders, as of the
Closing Date, that:
(i) The Special Servicer is duly organized, validly existing
and in good standing as a limited liability company under the laws of
the State of Delaware, and the Special Servicer is in compliance with
the laws of each State in which any Mortgaged Property is located to
the extent necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the
Special Servicer, and the performance and compliance with the terms of
this Agreement by the Special Servicer, will not violate the Special
Servicer's organizational documents or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, which default, in the Special Servicer's good faith
and reasonable judgment, is likely to materially and adversely effect
either the ability of the Special Servicer to perform its obligations
under this Agreement or the financial condition of the Special
Servicer.
(iii) The Special Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Special Servicer, enforceable
against the Special Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally, and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law.
(v) The Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or
any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Special
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Special Servicer to
perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which
would prohibit the Special Servicer from entering into this Agreement
or, in the Special Servicer's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability of the
Special Servicer to perform its obligations under this Agreement or the
financial condition of the Special Servicer.
(vii) Each officer or employee of the Special Servicer that
has responsibilities concerning the servicing and administration of the
Mortgage Loans is covered by errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(c). None of the
Special Servicer or any of its respective officers or employees that is
involved in the servicing or administration of the Mortgage Loans has
been refused such coverage or insurance.
(b) The representations and warranties of the Special Servicer
set forth in Section 2.07(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties which
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Special Servicer (if any) shall be deemed
to have made, as of the date of its succession, each of the representations set
forth in Section 2.07(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 2.07(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 2.08 Representations and Warranties of
the Trustee and the REMIC Administrator.
(a) Norwest Bank Minnesota, National Association, both in its
capacity as Trustee and in its capacity as REMIC Administrator (the "Bank"),
hereby represents and warrants to the other parties hereto and for the benefit
of the Certificateholders, as of the Closing Date, that:
(i) The Bank is a national bank duly organized, validly
existing and in good standing under the laws of the United States and
is, shall be or, if necessary, shall appoint a co-trustee that is, in
compliance with the laws of each State in which any Mortgaged Property
is located to the extent necessary to ensure the enforceability of each
Mortgage Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Bank,
and the performance and compliance with the terms of this Agreement by
the Bank, do not violate the Bank's organizational documents or
constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in the breach of,
any material agreement or other instrument to which it is a party or
which is applicable to it or any of its assets, which default, in the
Bank's good faith and reasonable judgment, is likely to materially and
adversely affect either the ability of the Bank to perform its
obligations under this Agreement or the financial condition of the
Bank.
(iii) The Bank has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Bank, enforceable against the Bank
in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Bank is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law,
any order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Bank's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of the Bank to perform its obligations under this Agreement or
the financial condition of the Bank.
(vi) No litigation is pending or, to the best of the Bank's
knowledge, threatened against the Bank which would prohibit the Bank
from entering into this Agreement or, in the Bank's good faith and
reasonable judgment, is likely to materially and adversely affect
either the ability of the Bank to perform its obligations under this
Agreement or the financial condition of the Bank.
(b) The representations and warranties of the Bank set forth
in Section 2.08(a) shall survive the execution and delivery of this Agreement
and shall inure to the benefit of the Persons for whose benefit they were made
for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties which
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Trustee or REMIC Administrator (if any and
regardless of whether the Trustee and the REMIC Administrator are different
Persons) shall be deemed to have made, as of the date of its succession, each of
the representations set forth in Section 2.08(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.08(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization. In any such case, the term "Bank" shall be deemed to mean such
successor Trustee or the REMIC Administrator, as appropriate.
SECTION 2.09 Issuance of the Class R-I
Certificates; Creation of the REMIC I
Regular Interests.
Concurrently with the assignment to the Trustee of the assets
included in REMIC I, and in exchange therefor, at the direction of the
Depositor, the REMIC I Regular Interests have been issued hereunder and the
Trustee has executed, authenticated and delivered to or upon the order of the
Depositor, the Class R-I Certificates in authorized denominations. The interests
evidenced by the Class R-I Certificates, together with the REMIC I Regular
Interests, constitute the entire beneficial ownership of REMIC I. The rights of
the Class R-I Certificateholders and REMIC II to receive distributions from the
proceeds of REMIC I in respect of the Class R-I Certificates and the REMIC I
Regular Interests, respectively, and all ownership interests of the Class R-I
Certificateholders and REMIC II in and to such distributions, shall be as set
forth in this Agreement.
SECTION 2.10 Conveyance of REMIC I Regular Interests;
Acceptance of REMIC II by the Trustee.
The Depositor, as of the Closing Date, and concurrently with
the execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the Holders of the REMIC II
Certificates. The Trustee acknowledges the assignment to it of the REMIC I
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of the REMIC II
Certificates.
SECTION 2.11 Issuance of the REMIC II Certificates.
Concurrently with the assignment to the Trustee of the REMIC I
Regular Interests, and in exchange therefor, at the direction of the Depositor,
the Trustee has executed, authenticated and delivered to or upon the order of
the Depositor, the REMIC II Certificates in authorized denominations evidencing
the entire beneficial ownership of REMIC II. The rights of the respective
Classes of Holders of the REMIC II Certificates to receive distributions from
the proceeds of REMIC II in respect of their REMIC II Certificates, and all
ownership interests of the respective Classes of Holders of the REMIC II
Certificates in and to such distributions, shall be as set forth in this
Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01 Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Mortgage Loans that it is obligated to service and
administer pursuant to this Agreement on behalf of the Trustee, and in the best
interests and for the benefit of the Certificateholders, in accordance with any
and all applicable laws and the terms of this Agreement, the Insurance Policies
and the respective Mortgage Loans and, to the extent consistent with the
foregoing, in accordance with the Servicing Standard. Without limiting the
foregoing, and subject to Section 3.21, (i) the Master Servicer shall service
and administer all Mortgage Loans as to which no Servicing Transfer Event has
occurred and all Corrected Mortgage Loans, and (ii) the Special Servicer shall
service and administer (x) each Mortgage Loan (other than a Corrected Mortgage
Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO
Property; provided, however, that the Master Servicer shall continue to collect
information and prepare all reports to the Trustee required hereunder with
respect to any Specially Serviced Mortgage Loans and REO Properties (and the
related REO Loans), and further to render such incidental services with respect
to any Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for herein.
(b) Subject to Section 3.01(a) and the terms and provisions of
this Agreement, the Master Servicer and the Special Servicer each shall have
full power and authority, acting alone, to do or cause to be done any and all
things in connection with such servicing and administration which it may deem
necessary or desirable. Without limiting the generality of the foregoing, each
of the Master Servicer and the Special Servicer, in its own name, with respect
to each of the Mortgage Loans it is obligated to service hereunder, is hereby
authorized and empowered by the Trustee to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them: (i) any and all financing
statements, continuation statements and other documents or instruments necessary
to maintain the lien created by any Mortgage or other security document in the
related Mortgage File on the related Mortgaged Property and related collateral;
(ii) in accordance with the Servicing Standard and subject to Sections 3.08 and
3.20, any and all modifications, waivers, amendments or consents to or with
respect to any documents contained in the related Mortgage File; and (iii) any
and all instruments of satisfaction or cancellation, or of partial or full
release or discharge, and all other comparable instruments. Subject to Section
3.10, the Trustee shall, at the written request of a Servicing Officer of the
Master Servicer or the Special Servicer, furnish, or cause to be so furnished,
to the Master Servicer and the Special Servicer, as the case may be, any limited
powers of attorney and other documents necessary or appropriate to enable them
to carry out their servicing and administrative duties hereunder; provided,
however, that the Trustee shall not be held liable for any misuse of any such
power of attorney by the Master Servicer or the Special Servicer.
(c) The relationship of each of the Master Servicer and
Special Servicer to the Trustee under this Agreement is intended by the parties
to be that of an independent contractor and not that of a joint venturer,
partner or agent.
(d) In the event that any two or more Mortgage Loans are
cross-collateralized with each other, the Master Servicer or Special Servicer,
as applicable, in accordance with the terms of this Agreement, shall service and
administer such Mortgage Loans as a single Mortgage Loan as and when it deems
necessary and appropriate, consistent with the Servicing Standard. If any
Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan,
then each other Mortgage Loan that is cross-collateralized with it shall also
become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized
Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and
until all Servicing Transfer Events in respect of each other Mortgage Loan that
is cross-collateralized with it, are remediated or otherwise addressed as
contemplated in the definition of "Specially Serviced Mortgage Loan".
SECTION 3.02 Collection of Mortgage Loan Payments.
Each of the Master Servicer and the Special Servicer shall
make reasonable efforts to collect all payments called for under the terms and
provisions of the Mortgage Loans it is obligated to service hereunder, and
shall, to the extent such procedures shall be consistent with this Agreement
(including without limitation, the Servicing Standard), follow such collection
procedures as it would follow were it the owner of such Mortgage Loans;
provided, however, that nothing herein contained shall be construed as an
express or implied guarantee by the Master Servicer or the Special Servicer of
the collectability of the Mortgage Loans; and, provided, further, that neither
the Master Servicer nor the Special Servicer shall, with respect to any
Hyper-Amortization Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Additional Interest (other
than the making of requests for its collection), unless (i) the taking of an
enforcement action with respect to the payment of other amounts due under such
Mortgage Loan is, in the good faith and reasonable judgment of the Special
Servicer, and without regard to such Additional Interest, also necessary,
appropriate and consistent with the Servicing Standard or (ii) all other amounts
due under such Mortgage Loan have been paid, the payment of such Additional
Interest has not been forgiven in accordance with Section 3.20 and, in the good
faith and reasonable judgment of the Special Servicer, the Liquidation Proceeds
expected to be recovered in connection with such enforcement action will cover
the anticipated costs of such enforcement action and, if applicable, any
associated Advance Interest. Consistent with the foregoing, the Master Servicer
or the Special Servicer each may waive any Default Charges in connection with
any specific delinquent payment on a Mortgage Loan it is obligated to service
hereunder.
Ninety (90) days prior to the maturity date of each Balloon
Mortgage Loan, the Master Servicer shall send a notice to the related Mortgagor
of such maturity date (with a copy to be sent to the Special Servicer) and shall
request confirmation that the Balloon Payment will be paid by such date.
SECTION 3.03 Collection of Taxes, Assessments and
Similar Items; Servicing Accounts;
Servicing Advances; Reserve Accounts.
(a) The Master Servicer shall, as to all the Mortgage Loans,
establish and maintain one or more accounts (the "Servicing Accounts"), into
which all Escrow Payments shall be deposited and retained. Subject to any terms
of the related Mortgage Loan documents that specify the nature of the account in
which Escrow Payments shall be held, each Servicing Account shall be an Eligible
Account. Withdrawals of amounts so collected in respect of any Mortgage Loan
(and interest earned thereon) from a Servicing Account may be made only: (i) to
effect payment of real estate taxes, assessments, insurance premiums, ground
rents (if applicable) and comparable items in respect of related Mortgaged
Property; (ii) to reimburse the Master Servicer, the Special Servicer or the
Trustee, as applicable, for any unreimbursed Servicing Advances made thereby to
cover any of the items described in the immediately preceding clause (i); (iii)
to refund to the related Mortgagor any sums as may be determined to be overages;
(iv) to pay interest, if required and as described below, to the related
Mortgagor on balances in the Servicing Account (or, if and to the extent not
payable to the related Mortgagor, to pay such interest to the Master Servicer);
or (v) to clear and terminate the Servicing Account at the termination of this
Agreement in accordance with Section 9.01. The Master Servicer shall pay or
cause to be paid to the Mortgagors interest, if any, earned on the investment of
funds in Servicing Accounts maintained thereby, if required by law or the terms
of the related Mortgage Loan. If the Master Servicer shall deposit in a
Servicing Account any amount not required to be deposited therein, it may at any
time withdraw such amount from such Servicing Account, any provision herein to
the contrary notwithstanding. The Special Servicer shall promptly deliver all
Escrow Payments received by it to the Master Servicer for deposit in the
applicable Servicing Account.
(b) The Master Servicer shall (with the cooperation of the
Special Servicer in the case of Specially Serviced Mortgage Loans), (i) maintain
accurate records with respect to each Mortgaged Property reflecting the status
of real estate taxes, assessments and other similar items that are or may become
a lien thereon and the status of insurance premiums and any ground rents payable
in respect thereof and (ii) use reasonable efforts to obtain, from time to time,
all bills for the payment of such items (including renewal premiums) and shall
effect payment thereof prior to the applicable penalty or termination date. For
purposes of effecting any such payment, the Master Servicer shall apply Escrow
Payments as allowed under the terms of the related Mortgage Loan or, if such
Mortgage Loan does not require the related Mortgagor to escrow for the payment
of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items, each of the Master Servicer and the Special
Servicer shall, as to those Mortgage Loans it is obligated to service hereunder
and subject to the Servicing Standard, enforce the requirement of the related
Mortgage that the Mortgagor make payments in respect of such items at the time
they first become due.
(c) In accordance with the Servicing Standard, the Master
Servicer shall, as to all the Mortgage Loans (but at the direction of the
Special Servicer in the case of Specially Serviced Mortgage Loans), except for
an Emergency Advance, subject to Section 3.19(d), advance with respect to the
related Mortgaged Property all such funds as are necessary for the purpose of
effecting the payment of (i) real estate taxes, assessments and other similar
items, (ii) ground rents or other rents (if applicable), and (iii) premiums on
Insurance Policies, in each instance if and to the extent Escrow Payments (if
any) collected from the related Mortgagor are insufficient to pay such item when
due and the related Mortgagor has failed to pay such item on a timely basis, and
provided that the particular advance would not, if made, constitute a
Nonrecoverable Servicing Advance (any determination that such advance would be a
Nonrecoverable Servicing Advance shall be made in accordance with Section
3.11(g)). All such advances shall be reimbursable in the first instance from
related collections from the Mortgagors and further as provided in Section
3.05(a). No costs incurred by the Master Servicer or the Special Servicer in
effecting the payment of real estate taxes, assessments and similar items and,
if applicable, ground rents on or in respect of such Mortgaged Properties shall,
for purposes hereof, including, without limitation, calculating monthly
distributions to Certificateholders, be added to the unpaid principal balances
of the related Mortgage Loans, notwithstanding that the terms of such Mortgage
Loans so permit.
(d) The Master Servicer shall, as to all the Mortgage Loans,
establish and maintain, as applicable, one or more accounts (the "Reserve
Accounts"), into which all Reserve Funds, if any, shall be deposited and
retained. Withdrawals of amounts so deposited may be made to pay for or
otherwise cover, or (if appropriate) to reimburse the related Mortgagor in
connection with, the specific items for which such Reserve Funds were escrowed,
all in accordance with the Servicing Standard and the terms of the related
Mortgage Note, Mortgage and any agreement with the related Mortgagor governing
such Reserve Funds. Subject to the terms of the related Mortgage Note and
Mortgage, all Reserve Accounts shall be Eligible Accounts. The Special Servicer
shall promptly deliver all Reserve Funds received by it to the Master Servicer
for deposit in the applicable Reserve Account.
(e) To the extent an operations and maintenance plan is
required to be established and executed pursuant to the terms of a Mortgage
Loan, the Master Servicer shall request from the Mortgagor written confirmation
thereof within a reasonable time after the later of the Closing Date and the
date as of which such plan is required to be established or completed. To the
extent any repairs, capital improvements, actions or remediations are required
to have been taken or completed pursuant to the terms of the Mortgage Loan, the
Master Servicer shall request from the Mortgagor written confirmation of such
actions and remediations within a reasonable time after the later of the Closing
Date and the date as of which such action or remediations are required by the
related mortgage loan documents to be or to have been taken or completed. To the
extent a Mortgagor shall fail to promptly respond to any inquiry described in
this Section 3.03(e), the Master Servicer shall determine whether the related
Mortgagor has failed to perform its obligations under the related Mortgage Loan
and report any such failure to the Special Servicer within a reasonable time
after the date as of which such actions or remediations are required to be or to
have been taken or completed.
SECTION 3.04 Certificate Account, the Distribution Account
and the REMIC II Distribution Account.
(a) The Master Servicer shall establish and maintain one or
more accounts (collectively, the "Certificate Account"), held on behalf of the
Trustee in trust for the benefit of the Certificateholders. The Certificate
Account shall be an Eligible Account. The Master Servicer shall deposit or cause
to be deposited in the Certificate Account, within two Business Days of receipt
(in the case of payments by Mortgagors or other collections on or in respect of
the Mortgage Loans) or as otherwise required hereunder, the following payments
and collections received or made by or on behalf of it subsequent to the Cut-off
Date (other than in respect of principal, interest and any other amounts due and
payable on the Mortgage Loans on or before the Cut-off Date, which payments
shall be delivered promptly to the Mortgage Loan Seller or its designee, with
negotiable instruments endorsed as necessary and appropriate without recourse):
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest at the respective
Mortgage Rates on the Mortgage Loans and all Prepayment Premiums
received in respect of the Mortgage Loans;
(iii) to the extent allocable to the period that any Mortgage
Loan is a Specially Serviced Mortgage Loan, all payments on account of
Default Charges on such Mortgage Loan;
(iv) all Insurance Proceeds and Liquidation Proceeds (net of
all related Liquidation Expenses paid therefrom) received in respect of
any Mortgage Loan (other than Liquidation Proceeds that are received in
connection with a purchase by the Master Servicer or a Majority
Certificateholder of the Controlling Class of all of the Mortgage Loans
and any REO Properties in the Trust Fund and that are required to be
deposited in the Distribution Account pursuant to Section 9.01);
(v) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.06 in connection with losses incurred
with respect to Permitted Investments of funds held in the Certificate
Account;
(vi) any amounts required to be deposited by the Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in
connection with losses resulting from a deductible clause in a blanket
or master single interest policy;
(vii) any amounts required to be transferred from the REO
Account pursuant to Section 3.16(c); and
(viii) any amounts representing payments made by Mortgagors
that are allocable to cover items in respect of which Servicing
Advances have been made.
The foregoing requirements for deposit in the Certificate
Account shall be exclusive. Without limiting the generality of the foregoing,
(A) actual payments from Mortgagors in the nature of Escrow Payments, amounts
that the Master Servicer and the Special Servicer are entitled to retain as
additional servicing compensation pursuant to Section 3.11(b) and Section
3.11(d), respectively, and Participant Retained Interest need not be deposited
by the Master Servicer in the Certificate Account and (B) with respect to any
amount representing a sub-servicing fee (including, without limitation, a
Primary Servicing Fee, if applicable) that otherwise would be required to be
deposited by the Master Servicer in the Certificate Account and that, once so
deposited, would have been permitted to be withdrawn immediately from the
Certificate Account pursuant to Section 3.05 as part of the payment of the
Master Servicing Fee, such amount shall be deemed to have been deposited to and
withdrawn from the Certificate Account for such purpose to the extent that such
sum has been retained by the Sub-Servicer pursuant to the related Sub-Servicing
Agreement. If the Master Servicer shall deposit in the Certificate Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from the Certificate Account, any provision herein to the contrary
notwithstanding. The Master Servicer shall promptly deliver to the Special
Servicer, as additional special servicing compensation in accordance with
Section 3.11(d), assumption fees, modification fees, Net Default Charges,
charges for beneficiary statements or demands, charges for checks returned for
insufficient funds and similar fees (excluding Prepayment Premiums) received by
the Master Servicer with respect to Specially Serviced Mortgage Loans. The
Certificate Account shall be maintained as a segregated account, separate and
apart from trust funds created for mortgage pass-through certificates of other
series serviced and the other accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i)
through (iv) above with respect to any Mortgage Loan, the Special Servicer shall
promptly, but in no event later than two Business Days after receipt, remit such
amounts to the Master Servicer for deposit into the Certificate Account in
accordance with the second preceding paragraph, unless the Special Servicer
determines, consistent with the Servicing Standard, that a particular item
should not be deposited because of a restrictive endorsement or other
appropriate reason. Any such amounts received by the Special Servicer with
respect to an REO Property shall be deposited by the Special Servicer into the
REO Account and remitted to the Master Servicer for deposit into the Certificate
Account pursuant to Section 3.16(c). With respect to any such amounts paid by
check to the order of the Special Servicer, the Special Servicer shall endorse
such check to the order of the Master Servicer and shall deliver promptly, but
in no event later than two Business Days after receipt, any such check to the
Master Servicer by overnight courier, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item cannot be so
endorsed and delivered because of a restrictive endorsement or other appropriate
reason.
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") to be held in trust for the
benefit of the Certificateholders. The Distribution Account shall be an Eligible
Account. On each Master Servicer Remittance Date, the Master Servicer shall
deliver to the Trustee, for deposit in the Distribution Account, an aggregate
amount of immediately available funds equal to the Master Servicer Remittance
Amount for such Master Servicer Remittance Date. If, at 1:00 p.m., New York City
time, on any Master Servicer Remittance Date, the Trustee has not received the
Master Servicer Remittance Amount, the Trustee shall provide notice to the
Master Servicer in the same manner as required by Section 4.03(a) hereof with
respect to P&I Advances.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee for deposit in the Distribution Account:
(i) any P&I Advances required to be made by the Master
Servicer in accordance with Section 4.03(a);
(ii) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.19(e) in connection with Prepayment
Interest Shortfalls; and
(iii) any Liquidation Proceeds paid by the Master Servicer or
a Majority Certificateholder of the Controlling Class in connection
with the purchase of all of the Mortgage Loans and any REO Properties
pursuant to Section 9.01, exclusive of the portion of such Liquidation
Proceeds required to be deposited in the Certificate Account pursuant
to Section 9.01.
The Trustee shall, upon receipt, deposit in the Distribution
Account any and all amounts received or advanced by the Trustee that are
required by the terms of this Agreement to be deposited therein.
(c) The Trustee shall establish and maintain the REMIC II
Distribution Account in the name of the Trustee, in trust for the benefit of the
Certificateholders (other than the Class R-I Certificateholders). The REMIC II
Distribution Account shall be established and maintained as an Eligible Account.
With respect to each Distribution Date, the Trustee shall withdraw from the
Distribution Account and deposit in the REMIC II Distribution Account on or
before such date the amount of the Available Distribution Amount (including P&I
Advances) and Prepayment Premiums to be distributed in respect of the REMIC I
Regular Interests pursuant to Section 4.01(a)(i) and Section 4.01(c)(ii) hereof
on such date.
(d) Funds in the Certificate Account may be invested only in
Permitted Investments in accordance with the provisions of Section 3.06. The
Master Servicer shall give notice to the other parties hereto of the location of
the Certificate Account as of the Closing Date and of the new location of the
Certificate Account prior to any change thereof. The Distribution Account and
the REMIC II Distribution Account shall be established at the Corporate Trust
Office of the Trustee as of the Closing Date, and the Trustee shall give notice
to the other parties hereto of the new location of the Distribution Account
prior to any change thereof.
SECTION 3.05 Permitted Withdrawals From the Certificate
Account and the Distribution Account.
(a) The Master Servicer may, from time to time, make
withdrawals from the Certificate Account for any of the following purposes (the
order set forth below not constituting an order of priority for such
withdrawals):
(i) to remit to the Trustee for deposit in the Distribution
Account the Master Servicer Remittance Amount for, and, to the extent
permitted or required by Section 4.03(a), any P&I Advances to be made
on, each Master Servicer Remittance Date;
(ii) to reimburse the Trustee or the Master Servicer, as
applicable, in that order, for unreimbursed P&I Advances made thereby
in respect of any Mortgage Loan or REO Loan, the Trustee's and the
Master Servicer's respective rights to reimbursement pursuant to this
clause (ii) with respect to any P&I Advance being payable from, and
limited to, amounts that represent Late Collections of interest and
principal (net of related Master Servicing Fees (but not the Special
Servicer's Standby Fee), Workout Fees and/or Liquidation Fees payable
therefrom) received in respect of the particular Mortgage Loan or REO
Loan as to which such P&I Advance was made;
(iii) to pay to the Master Servicer earned and unpaid Master
Servicing Fees in respect of each Mortgage Loan and REO Loan, the
Master Servicer's right to payment pursuant to this clause (iii) with
respect to any Mortgage Loan or REO Loan being payable from, and
limited to, amounts received on or in respect of such Mortgage Loan
(whether in the form of payments, Liquidation Proceeds or Insurance
Proceeds) or such REO Loan (whether in the form of REO Revenues,
Liquidation Proceeds or Insurance Proceeds) that are allocable as a
recovery of interest thereon;
(iv) to pay to the Special Servicer, out of general
collections on the Mortgage Loans and any REO Properties, earned and
unpaid Special Servicing Fees in respect of each Specially Serviced
Mortgage Loan and REO Loan;
(v) to pay to the Special Servicer earned and unpaid Workout
Fees and Liquidation Fees to which it is entitled pursuant to, and from
the sources contemplated by Section 3.11(c);
(vi) to reimburse the Trustee, the Special Servicer or the
Master Servicer, as applicable, in that order, for any unreimbursed
Servicing Advances made thereby with respect to any Mortgage Loan or
REO Property, the Trustee's, the Special Servicer's and the Master
Servicer's respective rights to reimbursement pursuant to this clause
(vi) with respect to any Servicing Advance being payable from, and
limited to, (A) payments made by the related Mortgagor that are
allocable to cover the item in respect of which such Servicing Advance
was made, and (B) Liquidation Proceeds (net of Liquidation Fees payable
therefrom), Insurance Proceeds and, if applicable, REO Revenues
received in respect of the particular Mortgage Loan or REO Property as
to which such Servicing Advance was made;
(vii) to reimburse the Trustee, the Special Servicer or the
Master Servicer, as applicable, in that order, out of general
collections on the Mortgage Loans and any REO Properties, for any
unreimbursed Advances made thereby with respect to any Mortgage Loan,
REO Loan or REO Property that have been determined to be Nonrecoverable
Advances;
(viii) to pay the Trustee, the Special Servicer or the Master
Servicer, as applicable, in that order, any Advance Interest due and
owing thereto, the Trustee's, the Special Servicer's and the Master
Servicer's respective rights to payment pursuant to this clause (viii)
being payable from, and limited to, Default Charges collected in
respect of the Mortgage Loan or REO Loan as to which the related
Advances were made (but only to the extent allocable to the period when
such Mortgage Loan was a Specially Serviced Mortgage Loan or an REO
Loan);
(ix) at or following such time as the Master Servicer
reimburses itself, the Special Servicer or the Trustee, as applicable,
for any unreimbursed Advance pursuant to clause (ii), (vi) or (vii)
above or Section 3.03, and insofar as payment has not already been made
pursuant to clause (viii) above, to pay the Trustee, the Special
Servicer or the Master Servicer, as the case may be, and in that order,
out of general collections on the Mortgage Loans and any REO
Properties, any related Advance Interest accrued and payable on such
Advance;
(x) to pay the Master Servicer, as additional servicing
compensation in accordance with Sections 3.06(b) and 3.11(b), any Net
Investment Earnings in respect of amounts held in the Certificate
Account for any Collection Period;
(xi) to pay the Master Servicer, as additional servicing
compensation in accordance with Section 3.11(b), any Prepayment
Interest Excesses and, to the extent not allocable to the period that
any Mortgage Loan is a Specially Serviced Mortgage Loan or REO Loan,
any Default Charges collected on the Mortgage Loans, and to pay the
Special Servicer, as additional servicing compensation in accordance
with Section 3.11(d), any Net Default Charges collected on any Mortgage
Loan to the extent allocable to the period that such Mortgage Loan is a
Specially Serviced Mortgage Loan or REO Loan;
(xii) to reimburse, out of general collections on the Mortgage
Loans and any REO Properties, the Master Servicer, the Special
Servicer, the REMIC Administrator, the Depositor, or any of their
respective directors, officers, employees and agents any amounts
reimbursable to any such Person pursuant to Section 6.03, or to pay
directly to any third party any amount which if paid by any such Person
would be reimbursable thereto pursuant to Section 6.03;
(xiii) to pay, out of general collections on the Mortgage
Loans and any REO Properties, for (A) the reasonable costs of the
advice of counsel contemplated by Section 3.17(a), (B) the reasonable
costs of the Opinions of Counsel contemplated by Sections 3.09(b)(ii)
and 3.16(a), (C) the reasonable costs of Appraisals obtained pursuant
to Section 3.11(g) or 4.03(c), (D) the reasonable costs of obtaining
any REO Extension sought by the Special Servicer as contemplated by
Section 3.16(a) and (E) the cost of recording this Agreement in
accordance with Section 11.02(a);
(xiv) to pay itself, the Special Servicer, the Majority
Certificateholder of the Controlling Class, the Mortgage Loan Seller or
any other Person, as the case may be, with respect to each Mortgage
Loan, if any, previously purchased by such Person pursuant to this
Agreement, all amounts received thereon subsequent to the date of
purchase;
(xv) to pay the Trustee or any of its respective directors,
officers, employees and agents, as the case may be, any amounts payable
or reimbursable to any such Person pursuant to Section 8.05(b) and
Section 8.13;
(xvi) to pay any costs and expenses contemplated in Section
3.11(h), the last sentence of Section 7.02 and the last sentence of
Section 8.08(a);
(xvii) to remit to the Trustee for deposit in the Interest
Reserve Account the Withheld Amounts required to be deposited pursuant
to Section 4.05;
(xviii) to pay to the Participant any Participant Retained
Interest placed in the Certificate Account; and
(xix) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Certificate Account at any
particular time (after withdrawing any portion of such amounts deposited in the
Certificate Account in error) are insufficient to satisfy all payments,
reimbursements and remittances to be made therefrom as set forth in clauses (ii)
through (xviii) above, then the corresponding withdrawals from the Certificate
Account shall be made in the following priority and subject to the following
rules: (A) if the payment, reimbursement or remittance is to be made from a
specific source of funds, then such payment, reimbursement or remittance shall
be made from that specific source of funds on a pro rata basis with any and all
other payments, reimbursements and remittances to be made from such specific
source of funds; provided that where, as in clauses (ii), (vi), (vii), (viii)
and (ix), an order of priority is set forth to govern the application of funds
withdrawn from the Certificate Account pursuant to such clauses, payments,
reimbursements or remittances pursuant to any such clause shall be made in such
order of priority to the extent of available funds; and (B) if the payment,
reimbursement or remittance can be made from any funds on deposit in the
Certificate Account, then (following any withdrawals made from the Certificate
Account in accordance with the immediately preceding clause (A) above) such
payment, reimbursement or remittance shall be made from such general funds
remaining on a pro rata basis with any and all other payments, reimbursements or
remittances to be made from such general funds; provided that where, as in
clauses (ii), (vi), (vii), (viii) and (ix), an order of priority is set forth to
govern the application of funds withdrawn from the Certificate Account pursuant
to such clauses, payments, reimbursements or remittances pursuant to any such
clause shall be made in such order of priority to the extent of available funds.
The Master Servicer shall keep and maintain separate
accounting records, on a loan-by-loan and property-by-property basis when
appropriate, in connection with any withdrawal from the Certificate Account
pursuant to clauses (ii) through (xiv) above.
The Master Servicer shall pay to the Special Servicer (or to
third party contractors at the direction of the Special Servicer) from the
Certificate Account amounts permitted to be paid to it (or to such third party
contractors) therefrom promptly upon receipt of a certificate of a Servicing
Officer of the Special Servicer describing the item and amount to which the
Special Servicer (or such third party contractors) is entitled. The Master
Servicer may rely conclusively on any such certificate and shall have no duty to
re-calculate the amounts stated therein. The Special Servicer shall keep and
maintain separate accounting for each Specially Serviced Mortgage Loan and REO
Property, on a loan-by-loan and property-by-property basis, for the purpose of
justifying any request for withdrawal from the Certificate Account.
(b) The Trustee may, from time to time, make withdrawals from
the Distribution Account for any of the following purposes (the order set forth
below not constituting an order of priority for such withdrawals):
(i) as contemplated by Section 3.04(c), to deposit into the
REMIC II Distribution Account on or before the related Distribution
Date the Available Distribution Amount and Prepayment Premiums to be
distributed in respect of the REMIC I Regular Interests;
(ii) to pay the Trustee accrued and unpaid Trustee Fees
pursuant to Section 8.05(a), and to reimburse the Trustee for any other
amounts to which it is entitled to be reimbursed from the Distribution
Account pursuant to this Agreement;
(iii) to pay the Trustee or any of its respective directors,
officers, employees and agents, as the case may be, any amounts payable
or reimbursable to any such Person pursuant to Section 8.05(b);
(iv) as contemplated by Section 11.01(g), to pay for the
reasonable costs of the Opinions of Counsel sought by the Trustee as
contemplated by Section 11.01(a) or 11.01(c) in connection with any
amendment to this Agreement requested by the Trustee which amendment is
in furtherance of the rights and interests of Certificateholders;
(v) to pay for the reasonable costs of the Opinions of Counsel
sought by the Trustee as contemplated by Section 11.02(a);
(vi) to (A) pay any and all federal, state and local taxes
imposed on REMIC I or REMIC II or on the assets or transactions of
either such REMIC, together with all incidental costs and expenses, and
any and all reasonable expenses relating to tax audits, if and to the
extent that either (1) none of the Trustee, the Master Servicer, the
Special Servicer or the REMIC Administrator is liable therefor pursuant
to Section 10.01(d) and/or Section 10.01(h) or (2) any such Person that
may be so liable has failed to timely make the required payment, and
(B) reimburse the REMIC Administrator for reasonable expenses incurred
by and reimbursable to it by the Trust pursuant to Section 10.01(d)
and/or Section 10.01(g); and
(vii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) The Trustee may make withdrawals from the REMIC II
Distribution Account for any of the following purposes: (i) to make
distributions to Certificateholders (other than Holders of the Class R-I
Certificates) on each Distribution Date pursuant to Section 4.01(b) or Section
9.01, as applicable; and (ii) to clear and terminate the REMIC II Distribution
Account at the termination of this Agreement pursuant to Section 9.01.
SECTION 3.06 Investment of Funds in the Certificate Account,
the Interest Reserve Account
and the REO Account.
(a) The Master Servicer may direct any depository institution
maintaining the Certificate Account, and the Special Servicer may direct any
depository institution maintaining the REO Account and the Trustee may direct
any depository institution maintaining the Interest Reserve Account, to invest,
or if it is such depository institution, may itself invest, the funds held
therein (each such account, for purposes of this Section 3.06, an "Investment
Account") only in one or more Permitted Investments bearing interest or sold at
a discount, and maturing, unless payable on demand, no later than the Business
Day immediately preceding the next succeeding date on which such funds are
required to be withdrawn from such account pursuant to this Agreement. All such
Permitted Investments shall be held to maturity, unless payable on demand, in
which case such investments may be sold at any time. Any investment of funds in
an Investment Account shall be made in the name of the Trustee for the benefit
of the Certificateholders (in its capacity as such). The Master Servicer (with
respect to Permitted Investments of amounts in the Certificate Account) and the
Special Servicer (with respect to Permitted Investments of amounts in the REO
Account), on behalf of the Trustee for the benefit of the Certificateholders,
and the Trustee (with respect to the Interest Reserve Account), on behalf of the
Certificateholders, shall (and the Trustee hereby designates the Master
Servicer, the Special Servicer or itself, as applicable, as the Person that
shall) (i) be the "entitlement holder" of any Permitted Investment that is a
"security entitlement" and (ii) maintain "control" of any Permitted Investment
that is either a "certificated security" or an "uncertificated security". For
purposes of this Section 3.06(a), the terms "entitlement holder", "security
entitlement", "control", "certificated security" and "uncertificated security"
shall have the meanings given such terms in Revised Article 8 (1994 Revision) of
the UCC, and "control" of any Permitted Investment by the Master Servicer or the
Special Servicer shall constitute "control" by a Person designated by, and
acting on behalf of, the Trustee for purposes of Revised Article 8 (1994
Revision) of the UCC. If amounts on deposit in an Investment Account are at any
time invested in a Permitted Investment payable on demand, the Master Servicer
(in the case of the Certificate Account) or the Special Servicer (in the case of
the REO Account) and the Trustee (in the case of the Interest Reserve Account)
shall:
(i) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount equal
to the lesser of (1) all amounts then payable thereunder and (2) the
amount required to be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly
upon determination by the Master Servicer, the Special Servicer or the
Trustee, as the case may be, that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter on
deposit in the Investment Account.
(b) Whether or not the Master Servicer directs the investment
of funds in the Certificate Account, interest and investment income realized on
funds deposited therein, to the extent of the Net Investment Earnings, if any,
for such Investment Account for each Collection Period, shall be for the sole
and exclusive benefit of the Master Servicer and shall be subject to its
withdrawal in accordance with Section 3.05(a). Whether or not the Special
Servicer directs the investment of funds in the REO Account, interest and
investment income realized on funds deposited therein, to the extent of the Net
Investment Earnings, if any, for such Investment Account for each Collection
Period, shall be for the sole and exclusive benefit of the Special Servicer and
shall be subject to its withdrawal in accordance with Section 3.16(b). Whether
or not the Trustee directs the investment of funds in the Interest Reserve
Account, interest and investment income realized on funds deposited therein, to
the extent of Net Investment Earnings, if any, for such Investment Account for
each Collection Period, shall be for the sole and exclusive benefit of the
Trustee and shall be subject to withdrawal by the Trustee. If any loss shall be
incurred in respect of any Permitted Investment on deposit in any Investment
Account, the Master Servicer (in the case of the Certificate Account), the
Special Servicer (in the case of the REO Account) and the Trustee (in the case
of the Interest Reserve Account) shall promptly deposit therein from its own
funds, without right of reimbursement, no later than the end of the Collection
Period during which such loss was incurred, the amount of the Net Investment
Loss, if any, for such Collection Period. The Trustee shall have no liability
whatsoever with respect to any such losses, except in respect to losses incurred
in respect of any Permitted Investment on deposit in the Interest Reserve
Account and to the extent that it is the obligor on any such Permitted
Investment.
(c) Except as otherwise expressly provided in this Agreement,
if any default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other performance required under any
Permitted Investment and the Master Servicer or the Special Servicer, as
applicable, has not taken such action, the Trustee may and, subject to Section
8.02, upon the request of Holders of Certificates entitled to not less than 25%
of the Voting Rights allocated to any Class, shall take such action as may be
appropriate to enforce such payment or performance, including, without
limitation, the institution and prosecution of appropriate proceedings.
(d) Notwithstanding the investment of funds held in any
Investment Account, for purposes of the calculations hereunder, including,
without limitation, the calculation of the Available Distribution Amount and the
Master Servicer Remittance Amount, the amounts so invested (but not any interest
earned thereon) shall be deemed to remain on deposit in such Investment Account.
SECTION 3.07 Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
(a) Each of the Master Servicer and the Special Servicer
shall, as to those Mortgage Loans it is obligated to service hereunder, use its
best efforts in accordance with the Servicing Standard to cause the related
Mortgagor to maintain (and, if the related Mortgagor is required by the terms of
the related Mortgage Loan and does not so maintain, the Master Servicer (even in
the case of Specially Serviced Mortgage Loans) shall itself maintain (subject to
the provisions of this Agreement regarding Nonrecoverable Advances, and further
subject to Section 3.11(h) hereof)), to the extent the Trustee, as mortgagee on
behalf of the Certificateholders, has an insurable interest and to the extent
available at commercially reasonable rates) all insurance coverage as is
required under the related Mortgage (subject to applicable law); provided that
if any Mortgage permits the holder thereof to dictate to the Mortgagor the
insurance coverage to be maintained on such Mortgaged Property, the Master
Servicer or the Special Servicer, as appropriate, shall impose such insurance
requirements as are consistent with the Servicing Standard. The Special Servicer
shall cause to be maintained for each REO Property, in each case with an insurer
that possesses the Required Claims-Paying Ratings at the time such policy is
purchased, no less insurance coverage than was previously required of the
related Mortgagor under the related Mortgage and, if the related Mortgage did
not so require, hazard insurance, public liability insurance and business
interruption or rent loss insurance in such amounts as are consistent with the
Servicing Standard, and the Special Servicer shall be reimbursed for the premium
costs thereof as a Servicing Advance pursuant to and to the extent permitted
under Section 3.05(a). All such insurance policies shall contain a "standard"
mortgagee clause, with loss payable to the Master Servicer (in the case of
insurance maintained in respect of the Mortgaged Properties) or the Special
Servicer (in the case of insurance maintained in respect of REO Properties) on
behalf of the Trustee, shall be issued by an insurer authorized under applicable
law to issue such insurance, and, unless prohibited by the related Mortgage, may
contain a deductible clause (not in excess of a customary amount). Any amounts
collected by the Master Servicer or Special Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the related
Mortgaged Property or REO Property or amounts to be released to the related
Mortgagor, in each case in accordance with the Servicing Standard) shall be
deposited in the Certificate Account, subject to withdrawal pursuant to Section
3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in
the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case
of amounts received in respect of an REO Property. Any cost incurred by the
Master Servicer or the Special Servicer, as applicable, in maintaining any such
insurance shall not, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit.
(b) (i) If the Master Servicer or the Special Servicer shall
obtain and maintain a blanket policy insuring against hazard losses on
any or all of the Mortgaged Properties (in the case of the Master
Servicer) or REO Properties (in the case of the Special Servicer),
then, to the extent such policy (A) is obtained from a Qualified
Insurer that possesses the Required Claims-Paying Ratings, and (B)
provides protection equivalent to the individual policies otherwise
required, the Master Servicer or the Special Servicer, as the case may
be, shall conclusively be deemed to have satisfied its obligation to
cause hazard insurance to be maintained on the Mortgaged Properties or
REO Properties, as applicable, so covered, and the premium costs
thereof shall be, if and to the extent they are specifically
attributable either to a specific Mortgaged Property during any period
that the related Mortgagor has failed to maintain the hazard insurance
required under the related Mortgage Loan in respect of such Mortgaged
Property or to a specific REO Property, a Servicing Advance
reimbursable pursuant to and to the extent permitted under Section
3.05(a); provided that, to the extent that such premium costs are
attributable to properties other than Mortgaged Properties and/or REO
Properties or are attributable to Mortgaged Properties as to which the
hazard insurance required under the related Mortgage Loan is being
maintained, they shall be borne by the Master Servicer or Special
Servicer, as the case may be, without right of reimbursement. Such a
blanket policy may contain a deductible clause (not in excess of a
customary amount), in which case the Master Servicer or the Special
Servicer, as appropriate, shall, if there shall not have been
maintained on the related Mortgaged Property or REO Property, as
applicable, a hazard insurance policy complying with the requirements
of Section 3.07(a), and there shall have been one or more losses which
would have been covered by such property specific policy (taking into
account any deductible clause that would have been permitted therein),
promptly deposit into the Certificate Account from its own funds
(without right of reimbursement) the amount of such losses up to the
difference between the amount of the deductible clause in such blanket
policy and the amount of any deductible clause that would have been
permitted under such property specific policy. The Master Servicer and
the Special Servicer each agree to prepare and present, on behalf of
itself, the Trustee and the Certificateholders, claims under any such
blanket policy maintained by it in a timely fashion in accordance with
the terms of such policy.
(ii) If the Master Servicer shall cause any Mortgaged Property
or the Special Servicer shall cause any REO Property to be covered by a
master single interest insurance policy naming the Master Servicer or
the Special Servicer, as applicable, on behalf of the Trustee as the
loss payee, then to the extent such policy (A) is obtained from a
Qualified Insurer that possesses the Required Claims-Paying Ratings and
(B) provides protection equivalent to the individual policies otherwise
required, the Master Servicer or the Special Servicer, as applicable,
shall conclusively be deemed to have satisfied its obligation to cause
such insurance to be maintained on such Mortgaged Property (in the case
of the Master Servicer) or REO Property (in the case of the Special
Servicer). If the Master Servicer shall cause any Mortgaged Property as
to which the related Mortgagor has failed to maintain the required
insurance coverage, or the Special Servicer shall cause any REO
Property, to be covered by such master single interest insurance
policy, then the incremental costs of such insurance applicable to such
Mortgaged Property or REO Property (i.e., other than any minimum or
standby premium payable for such policy whether or not any Mortgaged
Property or REO Property is covered thereby) paid by the Master
Servicer or the Special Servicer, as applicable, shall constitute a
Servicing Advance. The Master Servicer shall, consistent with the
Servicing Standard and the terms of the related Mortgage Loan
documents, pursue the related Mortgagor for the amount of such
incremental costs. All other costs associated with any such master
single interest insurance policy (including, without limitation, any
minimum or standby premium payable for such policy) shall be borne by
the Master Servicer or Special Servicer, as the case may be, without
right of reimbursement. Such master single interest insurance policy
may contain a deductible clause (not in excess of a customary amount),
in which case the Master Servicer or the Special Servicer, as
applicable, shall, in the event that there shall not have been
maintained on the related Mortgaged Property or REO Property, as the
case may be, a policy otherwise complying with the provisions of
Section 3.07(a), and there shall have been one or more losses which
would have been covered by such property specific policy had it been
maintained, promptly deposit into the Certificate Account from its own
funds (without right of reimbursement) the amount not otherwise payable
under the master single interest policy because of such deductible
clause, to the extent that any such deductible exceeds the deductible
limitation that pertained to the related Mortgage Loan, or, in the
absence of any such deductible limitation, the deductible limitation
which is consistent with the Servicing Standard.
(c) Each of the Master Servicer and the Special Servicer shall
at all times during the term of this Agreement keep in force with recognized
insurers that possess the Required Claims-Paying Ratings a fidelity bond in such
form and amount as would permit it to be a qualified Fannie Mae or Freddie Mac
seller-servicer of multifamily mortgage loans. Each of the Master Servicer and
the Special Servicer shall be deemed to have complied with the foregoing
provision if an Affiliate thereof has such fidelity bond coverage and, by the
terms of such fidelity bond, the coverage afforded thereunder extends to the
Master Servicer or the Special Servicer, as the case may be. Such fidelity bond
shall provide that it may not be canceled without 30 days' prior written notice
to the Trustee.
In addition, each of the Master Servicer and the Special
Servicer shall at all times during the term of this Agreement keep in force with
recognized insurers that possess the Required Claims-Paying Ratings a policy or
policies of insurance covering loss occasioned by the errors and omissions of
its officers and employees in connection with its obligation to service the
Mortgage Loans for which it is responsible hereunder, which policy or policies
shall be in such form and amount as would permit it to be a qualified Fannie Mae
or Freddie Mac seller-servicer of multifamily mortgage loans. Any such errors
and omissions policy, if required, shall provide that it may not be canceled
without 30 days' prior written notice to the Trustee.
(d) All insurance coverage required to be maintained under
this Section 3.07 shall be obtained from Qualified Insurers.
SECTION 3.08 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Subordinate Financing.
(a) As to each Mortgage Loan which contains a provision in the
nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property or of a
controlling interest in the related Mortgagor; or
(ii) provides that such Mortgage Loan may not be assumed
without the consent of the mortgagee in connection with any such sale
or other transfer, then, for so long as such Mortgage Loan is included
in the Trust Fund, each of the Master Servicer and the Special Servicer
shall, on behalf of the Trustee as the mortgagee of record, as to those
Mortgage Loans it is obligated to service hereunder, exercise (or waive
its right to exercise) any right it may have with respect to such
Mortgage Loan (x) to accelerate the payments thereon, or (y) to
withhold its consent to any such sale or other transfer, in a manner
consistent with the Servicing Standard, but subject to Section
3.20(a)(iii); provided that, notwithstanding anything to the contrary
contained herein, neither the Master Servicer nor the Special Servicer
shall waive any right it has, or grant any consent it is otherwise
entitled to withhold, under any related "due-on-sale" clause unless it
first (1) shall have provided, at least five Business Days prior to the
granting of such waiver or consent, to the Directing Certificateholder
and, in the case of the Master Servicer, to the Special Servicer
written notice of the matter and a written explanation of the
surrounding circumstances, (2) upon request made within such five
Business Day-period, shall have discussed the matter with the Directing
Certificateholder and/or, in the case of the Master Servicer, with the
Special Servicer and (3) if the then-outstanding principal balance of
the subject Mortgage Loan (together with the then-outstanding aggregate
principal balance of all other Mortgage Loans to the same Mortgagor or
to other Mortgagors that are, to the Master Servicer's or Special
Servicer's, as applicable, actual knowledge, Affiliates of the
Mortgagor under the subject Mortgage Loan) is $20,000,000 or more, or
2% or more of the then current principal balance of the Mortgage Pool,
shall have obtained written confirmation from each Rating Agency that
such action shall not result in a qualification (if applicable),
downgrade or withdrawal of the rating then assigned by such Rating
Agency to any Class of Certificates (provided, however, that such a
confirmation from DCR shall only be required if such principal balance
exceeds 2% of the then current principal balance of the Mortgage Pool);
and provided, further, that, notwithstanding anything to the contrary
contained herein, neither the Master Servicer nor the Special Servicer
shall waive any right it has, or grant any consent it is otherwise
entitled to withhold, under any related "due-on-sale" clause governing
the transfer of any Mortgaged Property which secures, or controlling
interests in any Mortgagor under, a Group of Cross-Collateralized
Mortgage Loans unless all of the Mortgaged Properties securing, or a
controlling interest in all the Mortgagors (if more than one) under,
such Group of Cross-Collateralized Mortgage Loans are transferred
simultaneously to the same transferee. In the event that the Master
Servicer or Special Servicer intends or is required, in accordance with
the preceding sentence, the Mortgage Loan documents or applicable law,
to permit the transfer of any Mortgaged Property, the Master Servicer
or the Special Servicer, as the case may be, may, if consistent with
the Servicing Standard, enter into a substitution of liability
agreement, pursuant to which the original Mortgagor and any original
guarantors are released from liability, and the transferee and any new
guarantors are substituted therefor and become liable under the
Mortgage Note and any related guaranties and, in connection therewith,
may require from the related Mortgagor a reasonable and customary fee
for the additional services performed by it, together with
reimbursement for any related costs and expenses incurred by it. The
Master Servicer or the Special Servicer, as the case may be, shall
promptly notify the Trustee in writing of any such agreement and
forward the original thereof to the Trustee for inclusion in the
related Mortgage File.
(b) As to each Mortgage Loan which contains a provision in the
nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property;
or
(ii) requires the consent of the mortgagee to the creation of
any such additional lien or other encumbrance on the related Mortgaged
Property;
then, for so long as such Mortgage Loan is included in the Trust Fund, each of
the Master Servicer and the Special Servicer shall on behalf of the Trustee as
the mortgagee of record, as to those Mortgage Loans it is obligated to service
hereunder, exercise (or waive its right to exercise) any right it may have with
respect to such Mortgage Loan (x) to accelerate the payments thereon, or (y) to
withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standard, but subject to
Section 3.20(a)(iii); provided that, notwithstanding anything to the contrary
contained herein, neither the Master Servicer nor the Special Servicer shall
waive any right it has, or grant any consent it is otherwise entitled to
withhold, under any related "due-on-encumbrance" clause unless it first (1)
shall have provided, at least five Business Days prior to the granting of such
waiver or consent, to the Directing Certificateholder and, in the case of the
Master Servicer, to the Special Servicer written notice of the matter and a
written explanation of the surrounding circumstances, and (2) upon request made
within such five Business Day-period, shall have discussed the matter with the
Directing Certificateholder and/or, in the case of the Master Servicer, with the
Special Servicer; and provided, further, that, notwithstanding anything to the
contrary contained herein, neither the Master Servicer nor the Special Servicer
shall waive any right it has, or grant any consent it is otherwise entitled to
withhold, under any related "due-on-encumbrance" clause with respect to a
Mortgage Loan representing $20,000,000 or more, or 2% or more of the then
current principal balance of the Mortgage Pool, until it has received written
confirmation from each Rating Agency that such action would not result in the
downgrade, qualification (if applicable) or withdrawal of the rating then
assigned by such Rating Agency to any Class of Certificates (provided, however,
that such a confirmation from DCR shall only be required if such principal
balance exceeds 2% of the then current principal balance of the Mortgage Pool).
(c) Nothing in this Section 3.08 shall constitute a waiver of
the Trustee's right, as the mortgagee of record, to receive notice of any
assumption of a Mortgage Loan, any sale or other transfer of the related
Mortgaged Property or the creation of any additional lien or other encumbrance
with respect to such Mortgaged Property.
(d) With respect to a request to the Special Servicer from the
Master Servicer for approval for the assumption of a Mortgage Loan that would
not require Rating Agency review, the Special Servicer shall notify the Master
Servicer of its decision within five Business Days of receiving notice (and all
supporting documentation reasonably required by the Special Servicer for its
analysis) from the Master Servicer of the Master Servicer's decision to approve
the assumption.
SECTION 3.09 Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to subsections (b)
through (d) of this Section 3.09, exercise reasonable efforts, consistent with
the Servicing Standard, to foreclose upon or otherwise comparably convert (which
may include an REO Acquisition) the ownership of properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments, and
which are not released from the Trust Fund pursuant to any other provision
hereof, if the Special Servicer determines, consistent with the Servicing
Standard, that such action would be in the best economic interest of the Trust;
provided that neither the Master Servicer nor the Special Servicer shall, with
respect to any Hyper-Amortization Loan after its Anticipated Repayment Date,
take any enforcement action with respect to the payment of Additional Interest
(other than the making of requests for its collection) unless (i) the taking of
an enforcement action with respect to the payment of other amounts due under
such Mortgage Loan is, in the good faith and reasonable judgment of the Special
Servicer, and without regard to such Additional Interest, also necessary,
appropriate and consistent with the Servicing Standard or (ii) all other amounts
due under such Mortgage Loan have been paid, the payment of such Additional
Interest has not been forgiven in accordance with Section 3.20 and, in the good
faith and reasonable judgment of the Special Servicer, the Liquidation Proceeds
expected to be recovered in connection with such enforcement action will cover
the anticipated costs of such enforcement action and, if applicable, any
associated Advance Interest. The Special Servicer shall advance or direct the
Master Servicer to advance, as contemplated by Section 3.19(d), all costs and
expenses to be incurred on behalf of the Trust in any such proceedings, subject
to each of the Master Servicer and the Special Servicer being entitled to
reimbursement for any such advance as a Servicing Advance as provided in Section
3.05(a), and further subject to the Special Servicer's being entitled to pay out
of the related Liquidation Proceeds any Liquidation Expenses incurred in respect
of any Mortgage Loan, which Liquidation Expenses were outstanding at the time
such proceeds are received. In connection with the foregoing, in the event of a
default under any Mortgage Loan or Group of Cross-Collateralized Mortgage Loans
that are secured by real properties located in multiple states, and such states
include the State of California or another state with a statute, rule or
regulation comparable to the State of California's "one action" rule, then the
Special Servicer shall consult with Independent counsel regarding the order and
manner in which the Special Servicer should foreclose upon or comparably proceed
against such properties (the cost of such consultation to be advanced by the
Master Servicer as a Servicing Advance, at the direction of the Special Servicer
as contemplated by Section 3.19(d), subject to the Master Servicer being
entitled to reimbursement therefor as a Servicing Advance as provided in Section
3.05(a)). When applicable state law permits the Special Servicer to select
between judicial and non-judicial foreclosure in respect of any Mortgaged
Property, the Special Servicer shall make such selection in a manner consistent
with the Servicing Standard. Nothing contained in this Section 3.09 shall be
construed so as to require the Special Servicer, on behalf of the Trust, to make
an offer on any Mortgaged Property at a foreclosure sale or similar proceeding
that is in excess of the fair market value of such property, as determined by
the Special Servicer in its reasonable and good faith judgment taking into
account the factors described in Section 3.18(e) and the results of any
Appraisal obtained pursuant to the following sentence or otherwise, all such
offers to be made in a manner consistent with the Servicing Standard. If and
when the Special Servicer or the Master Servicer deems it necessary and prudent
for purposes of establishing the fair market value of any Mortgaged Property
securing a defaulted Mortgage Loan, whether for purposes of making an offer at
foreclosure or otherwise, the Special Servicer or the Master Servicer, as the
case may be, is authorized to have an Appraisal completed with respect to such
property (the cost of which Appraisal shall be advanced by the Master Servicer
as a Servicing Advance, subject to its being entitled to reimbursement therefor
as a Servicing Advance as provided in Section 3.05(a), such Advance to be made
at the direction of the Special Servicer when the Appraisal is obtained by the
Special Servicer).
(b) The Special Servicer shall not acquire any personal
property pursuant to this Section 3.09 (with the exception of cash or cash
equivalents pledged as collateral for a Mortgage Loan) unless either:
(i) such personal property is incident to real property
(within the meaning of Section 856(e)(1) of the Code) so acquired by
the Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of
Counsel (the reasonable cost of which may be withdrawn from the
Certificate Account pursuant to Section 3.05(a)) to the effect that the
holding of such personal property by the Trust will not cause either of
REMIC I or REMIC II to fail to qualify as a REMIC at any time that any
Certificate is outstanding or, subject to Section 3.17, cause the
imposition of a tax on the Trust under the REMIC Provisions.
(c) Notwithstanding the foregoing provisions of this Section
3.09, neither the Special Servicer nor the Master Servicer shall, on behalf of
the Trustee, initiate foreclosure proceedings, obtain title to a Mortgaged
Property in lieu of foreclosure or otherwise, have a receiver of rents appointed
with respect to any Mortgaged Property, or take any other action with respect to
any Mortgaged Property, if, as a result of any such action, the Trustee, on
behalf of the Certificateholders, would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law, unless
(as evidenced by an Officer's Certificate to such effect delivered to the
Trustee) the Special Servicer has previously determined in accordance with the
Servicing Standard, based on a Phase I Environmental Assessment (and any
additional environmental testing that the Special Servicer deems necessary and
prudent) of such Mortgaged Property performed by an Independent Person who
regularly conducts Phase I Environmental Assessments and such additional
environmental testing, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions
as are necessary to bring the Mortgaged Property in compliance
therewith and proceeding against the Mortgaged Property is reasonably
likely to produce a greater recovery to Certificateholders on a present
value basis (the relevant discounting of anticipated collections that
will be distributable to Certificateholders to be performed at the
related Net Mortgage Rate (or, in the case of a Hyper-Amortization Loan
after its Anticipated Repayment Date, at the related Net Mortgage Rate
immediately prior to the Anticipated Repayment Date)), taking into
consideration any associated liabilities, than not taking such actions
and not proceeding against such Mortgaged Property; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and/or regulations or, if such
circumstances or conditions are present for which any such action could
be required, that taking such actions with respect to such Mortgaged
Property and proceeding against the Mortgaged Property is reasonably
likely to produce a greater recovery to Certificateholders on a present
value basis (the relevant discounting of anticipated collections that
will be distributable to Certificateholders to be performed at the
related Net Mortgage Rate (or, in the case of a Hyper-Amortization Loan
after its Anticipated Repayment Date, at the related Net Mortgage Rate
immediately prior to the Anticipated Repayment Date)), taking into
consideration any associated liabilities, than not taking such actions
and not proceeding against such Mortgaged Property.
The cost of such Phase I Environmental Assessment and any such
additional environmental testing, as well as the cost of any remedial,
corrective or other further action contemplated by clause (i) and/or clause (ii)
of the preceding paragraph, shall be advanced by the Master Servicer at the
direction of the Special Servicer given in accordance with the Servicing
Standard; provided, however, that the Master Servicer shall not be obligated in
connection therewith to advance any funds which, if so advanced, would
constitute a Nonrecoverable Servicing Advance. Amounts so advanced shall be
subject to reimbursement as Servicing Advances in accordance with Section
3.05(a).
(d) If the environmental testing contemplated by Section
3.09(c) above establishes that either of the conditions set forth in clauses (i)
and (ii) of the first sentence thereof has not been satisfied with respect to
any Mortgaged Property securing a defaulted Mortgage Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property, but including the sale of the
affected Mortgage Loan) and, at such time as it deems appropriate, may, on
behalf of the Trustee, release all or a portion of such Mortgaged Property from
the lien of the related Mortgage; provided that prior to the release of all or a
portion of the related Mortgaged Property from the lien of the related Mortgage,
(i) the Special Servicer shall have notified the Trustee in writing of its
intention to so release all or a portion of such Mortgaged Property, (ii) the
Trustee shall have notified the Certificateholders in writing of the Special
Servicer's intention to so release all or a portion of such Mortgaged Property
and (iii) the Holders of Certificates entitled to a majority of the Voting
Rights shall not have objected to such release within 30 days of the Trustee's
distributing such notice.
(e) The Special Servicer shall provide written reports to the
Trustee, the Master Servicer and the Rating Agencies monthly regarding any
actions taken by the Special Servicer with respect to any Mortgaged Property
securing a defaulted Mortgage Loan as to which the environmental testing
contemplated in subsection (c) above has revealed that either of the conditions
set forth in clauses (i) and (ii) of the first sentence thereof has not been
satisfied or that any remedial, corrective or other further action contemplated
by either such clause is required, in each case until the earliest to occur of
(i) satisfaction of both such conditions and completion of all such remedial,
corrective or other further action, (ii) repurchase of the related Mortgage Loan
by the Mortgage Loan Seller and (iii) release of the lien of the related
Mortgage on such Mortgaged Property. The Trustee shall forward copies of all
such reports to the Certificateholders upon written request promptly following
its receipt thereof. In addition, the Master Servicer will deliver or cause to
be delivered to any of the Class F, Class G, Class H, Class J and Class K
Certificateholders that shall request a copy of any such written reports and any
Phase I Environmental Assessments within 15 days after receipt of such written
reports and Phase I Environmental Assessments from the Special Servicer.
(f) The Special Servicer shall file the information returns
with respect to the receipt of any mortgage interest received in a trade or
business, the reports of foreclosures and abandonments and reports relating to
any cancellation of indebtedness income with respect to any Mortgaged Property
required by Sections 6050H, 6050J and 6050P of the Code and deliver to the
Trustee an Officer's Certificate stating that such reports have been filed. Such
reports shall be in form and substance sufficient to meet the reporting
requirements imposed by such Sections 6050H, 6050J and 6050P of the Code.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan permit such an action.
The Master Servicer, at the direction of the Special Servicer, shall advance the
costs incurred in any such deficiency action, subject to its being entitled to
reimbursement therefor as a Servicing Advance as provided in Section 3.05(a).
(h) The Special Servicer shall maintain accurate records,
certified by a Servicing Officer, of each Final Recovery Determination in
respect of any Mortgage Loan or REO Property and the basis thereof. Each Final
Recovery Determination shall be evidenced by an Officer's Certificate delivered
to the Trustee, the Master Servicer and the Rating Agencies no later than the
tenth Business Day following such Final Recovery Determination.
SECTION 3.10 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the
receipt by the Master Servicer or Special Servicer of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Master Servicer or Special Servicer, as the case may be, shall immediately
notify the Trustee and request delivery of the related Mortgage File by
delivering thereto a Request for Release in the form of Exhibit D attached
hereto signed by a Servicing Officer of the Master Servicer or Special Servicer,
as applicable. Any such Request for Release shall include a statement to the
effect that all amounts received or to be received in connection with such
payment which are required to be deposited in the Certificate Account pursuant
to Section 3.04(a) have been or will be so deposited. Upon receipt of such
notice and request conforming in all material respects to the provisions hereof,
the Trustee shall promptly release, or cause any related Custodian to release,
the related Mortgage File to the Master Servicer or Special Servicer, as
applicable. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Certificate
Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), then, upon
request of the Master Servicer or the Special Servicer and receipt therefrom of
a Request for Release in the form of Exhibit D attached hereto signed by a
Servicing Officer thereof, the Trustee shall release, or cause any related
Custodian to release, such Mortgage File (or portion thereof) to the Master
Servicer or the Special Servicer, as the case may be. Upon return of such
Mortgage File (or portion thereof) to the Trustee or the related Custodian, or
the delivery to the Trustee of a certificate of a Servicing Officer of the
Special Servicer stating that such Mortgage Loan was liquidated and that all
amounts received or to be received in connection with such liquidation which are
required to be deposited into the Certificate Account pursuant to Section
3.04(a) have been or will be so deposited, or that such Mortgage Loan has become
an REO Property, the Request for Release shall be released by the Trustee to the
Master Servicer or the Special Servicer, as applicable.
(c) The Trustee, if requested, shall promptly execute and
deliver to the Special Servicer any court pleadings, requests for trustee's sale
or other documents furnished by the Special Servicer and certified by it as
being necessary to the foreclosure or trustee's sale in respect of a Mortgaged
Property or to any legal action brought to obtain judgment against any Mortgagor
on the Mortgage Note or Mortgage or to obtain a deficiency judgment, or to
enforce any other remedies or rights provided by the Mortgage Note or Mortgage
or otherwise available at law or in equity or for any other purpose necessary or
advisable in the reasonable, good faith judgment of the Special Servicer;
provided, however, that the Special Servicer shall be responsible for the
preparation of all such documents and pleadings; and when submitted to the
Trustee for signature, such documents or pleadings shall be accompanied by a
certificate of a Servicing Officer requesting that such pleadings or documents
be executed by the Trustee and certifying as to the reason such documents or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate or otherwise affect the lien of the Mortgage, except
for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
SECTION 3.11 Servicing Compensation; Interest on Servicing
Advances; Payment of Certain Expenses;
Obligations of the Trustee Regarding Back-up
Servicing Advances.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan (including, without limitation, each Specially Serviced
Mortgage Loan) and REO Loan. As to each such Mortgage Loan and REO Loan, the
Master Servicing Fee shall accrue at the applicable Master Servicing Fee Rate on
the Stated Principal Balance as of the Due Date in the immediately preceding
Collection Period and for the same number of days respecting which any related
interest payment due on such Mortgage Loan or deemed to be due on such REO Loan
is computed under the terms of the related Mortgage Note (as such terms may be
changed or modified at any time following the Closing Date) and applicable law,
and without giving effect to any Additional Interest that may accrue on any
Hyper-Amortization Loan after its Anticipated Repayment Date. The Master
Servicing Fee with respect to any Mortgage Loan or REO Loan shall cease to
accrue if a Liquidation Event occurs in respect thereof. Earned but unpaid
Master Servicing Fees shall be payable monthly, on a loan-by-loan basis, from
payments of interest on each Mortgage Loan and REO Revenues allocable as
interest on each REO Loan. The Master Servicer shall be entitled to recover
unpaid Master Servicing Fees in respect of any Mortgage Loan or REO Loan out of
Insurance Proceeds or Liquidation Proceeds, to the extent permitted by Section
3.05(a). The right to receive the Master Servicing Fee may not be transferred in
whole or in part except in accordance with the following paragraph, except in
connection with the transfer of all of the Master Servicer's responsibilities
and obligations under this Agreement or except as provided in Section 3.22(d).
The Master Servicer shall, monthly out of its Master Servicing Fee, pay to any
Sub-Servicer retained by the Master Servicer such Sub-Servicer's sub-servicing
fee (including, without limitation, any Primary Servicing Fee, if applicable),
to the extent such Sub-Servicer is entitled thereto under the applicable
Sub-Servicing Agreement.
Banc One may, at its option, sell or pledge the rights to the
"Transferable Portion" (as hereinafter defined) of its Master Servicing Fee;
provided that in the event of any resignation or termination of Banc One (or any
successor thereto) as Master Servicer, the rights of Banc One or any transferee
of such Transferable Portion shall terminate (except for the right to receive
the Excess Portion (as defined below), if any, on any Distribution Date as set
forth in the penultimate sentence of this paragraph). In the event of the
appointment of a successor Master Servicer, the Trustee shall cooperate with
Banc One to attempt to appoint a successor (which may be the Trustee) which,
subject to the Trustee's satisfaction as to quality of servicing and the best
interests of Certificateholders and the requirements of Article VII of this
Agreement, will perform the services of the Master Servicer for payment of an
amount (the "Successor Servicer Retained Fee") less than the full Master
Servicing Fee expressed as a fixed number of basis points such that the
Transferable Portion is reduced only to the extent reasonably necessary (in the
sole discretion of the Trustee) to provide market rate compensation (except that
the Transferable Portion shall be reduced to zero during any period for which
the Trustee serves as successor servicer hereunder by reason of a default by the
Master Servicer). If, and only if, the successor Master Servicer shall have so
agreed to perform such services for less than the full Master Servicing Fee,
then while such successor Master Servicer will be entitled to receive the full
Master Servicing Fee, it shall pay the excess of the Transferable Portion (which
would otherwise be payable) over the Successor Servicer Retained Fee on each
Distribution Date (any such excess, the "Excess Portion") to Banc One or any
transferee of the Transferable Portion, as applicable, at such time and to the
extent the Master Servicer is entitled to receive payment of the Master
Servicing Fees under this Agreement, notwithstanding any termination of Banc One
under this Agreement. If the successor Master Servicer shall not have agreed to
perform such services for such lesser amount, the rights of Banc One or any
transferee to the Transferable Portion shall terminate. The "Transferable
Portion" of the Master Servicing Fee is the amount by which the Master Servicing
Fee exceeds the sum of (i) the Primary Servicing Fee, (ii) the Standby Fee and
(iii) the amount of the related Master Servicing Fee calculated using a rate of
0.02% per annum.
(b) The Master Servicer shall be entitled to receive as
additional servicing compensation:
(i) Default Charges, assumption fees, modification fees,
charges for beneficiary statements or demands and any similar fees
(excluding Prepayment Premiums), in each case to the extent actually
paid by a Mortgagor with respect to a Mortgage Loan that is not a
Specially Serviced Mortgage Loan;
(ii) amounts collected for checks returned for insufficient
funds, to the extent actually paid by a Mortgagor with respect to any
Mortgage Loan;
(iii) any Prepayment Interest Excesses collected on the
Mortgage Loans;
(iv) interest or other income earned on deposits in the
Certificate Account, in accordance with Section 3.06(b) (but only to
the extent of the Net Investment Earnings, if any, with respect to the
Certificate Account for each Collection Period); and
(v) to the extent not required to be paid to any Mortgagor
under applicable law or under the related Mortgage, any interest or
other income earned on deposits in the Servicing Accounts maintained by
the Master Servicer;
provided that with respect to the items of additional servicing compensation set
forth in clauses (i), (ii) and (iii) above, the Master Servicer shall, in turn,
pay the amounts described therein to the related Sub-Servicer to the extent such
Sub-Servicer is entitled thereto under the applicable Sub-Servicing Agreement.
The Master Servicer shall be required to pay out of its own
funds all expenses incurred by it in connection with its servicing activities
hereunder (including, without limitation, payment of any amounts due and owing
to any Sub-Servicer retained by it and the premiums for any blanket policy
insuring against hazard losses pursuant to Section 3.07(b)), if and to the
extent such expenses are not payable directly out of the Certificate Account, or
Servicing Accounts or Reserve Accounts, as applicable, and the Master Servicer
shall not be entitled to reimbursement therefor except as expressly provided in
this Agreement.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and each REO Loan. As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from
time to time at the Special Servicing Fee Rate on the Stated Principal Balance
as of the Due Date in the immediately preceding Collection Period and for the
same number of days respecting which any related interest payment due on such
Mortgage Loan or deemed to be due on such REO Loan is computed under the terms
of the related Mortgage Note (as such terms may be modified at any time
following the Closing Date) and applicable law, and without giving effect to any
Additional Interest that may accrue on any Hyper-Amortization Loan after its
Anticipated Repayment Date. The Special Servicing Fee with respect to any
Specially Serviced Mortgage Loan or REO Loan shall cease to accrue as of the
date a Liquidation Event occurs in respect thereof or it becomes a Corrected
Mortgage Loan. Earned but unpaid Special Servicing Fees shall be payable monthly
out of general collections on the Mortgage Loans and any REO Properties on
deposit in the Certificate Account pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the
Special Servicer shall be entitled to receive the Standby Fee with respect to
each Mortgage Loan and each REO Loan. As to each Mortgage Loan and each REO
Loan, the Standby Fee shall accrue in the same manner as the Master Servicing
Fee from time to time at the Standby Fee Rate on the basis of the same principal
amount and for the same number of days respecting which any related interest
payment due on such Mortgage Loan or deemed to be due on such REO Loan is
computed under the terms of the related Mortgage Note (as such terms may be
modified at any time following the Closing Date) and applicable law, and without
giving effect to any Additional Interest that may accrue on any
Hyper-Amortization Loan after its Anticipated Repayment Date. Standby Fees shall
be payable monthly by the Master Servicer on a loan-by-loan basis out of its
Master Servicing Fees received with respect to each Mortgage Loan and each REO
Loan.
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan, unless the basis on which such Mortgage Loan became a
Corrected Mortgage Loan was the remediation of a circumstance or condition
relating to the Mortgage Loan Seller's obligation to repurchase such Mortgage
Loan pursuant to Section 2.03, in which case, if such Mortgage Loan is
repurchased within the 90-day period (or, if an additional 90-day extension is
permitted under Section 2.03(a), 180-day period) described in Section 2.03(a),
no Workout Fee will be payable from or based upon the receipt of, any Purchase
Price paid by the Mortgage Loan Seller in satisfaction of such repurchase
obligation. Furthermore, no Workout Fees will be payable from or based upon the
receipt of any Liquidation Proceeds paid by any Majority Certificateholder of
the Controlling Class or the Master Servicer in connection with the purchase of
all the Mortgage Loans and any REO Properties in the Trust Fund pursuant to
Section 9.01 hereof. As to each Corrected Mortgage Loan, subject to the
exceptions provided for in the two preceding sentences, the Workout Fee shall be
payable from, and shall be calculated by application of the Workout Fee Rate to,
each collection of interest (other than Default Interest and, in the case of a
Hyper-Amortization Loan after its Anticipated Repayment Date, Additional
Interest) and principal received on such Mortgage Loan for so long as it remains
a Corrected Mortgage Loan. The Workout Fee with respect to any Corrected
Mortgage Loan will cease to be payable if a Servicing Transfer Event occurs with
respect thereto or if the related Mortgaged Property becomes an REO Property;
provided that a new Workout Fee will become payable if and when such Mortgage
Loan again becomes a Corrected Mortgage Loan. If the Special Servicer is
terminated other than for cause or resigns in accordance with clause (ii) of the
first paragraph of Section 6.04, it shall retain the right to receive any and
all Workout Fees payable in respect of Mortgage Loans that became Corrected
Mortgage Loans during the period that it acted as Special Servicer and were
still such at the time of such termination or resignation (and the successor
Special Servicer shall not be entitled to any portion of such Workout Fees), in
each case until the Workout Fee for any such Mortgage Loan ceases to be payable
in accordance with the preceding sentence.
As further compensation for its activities hereunder, the
Special Servicer shall also be entitled to receive a Liquidation Fee with
respect to each Specially Serviced Mortgage Loan or REO Property as to which it
receives any full or discounted payoff from the related Mortgagor or any
Liquidation Proceeds (other than in connection with the purchase of any such
Specially Serviced Mortgage Loan or REO Property by the Special Servicer
pursuant to Section 3.18, by the Master Servicer or the Majority
Certificateholder of the Controlling Class pursuant to Section 3.18 or Section
9.01, or by the Mortgage Loan Seller pursuant to Section 2.03 within 90 days
(or, if an additional 90-day extension is permitted, 180 days) of its discovery
or notice of the breach or Document Defect that gave rise to the repurchase
obligation, and other than in connection with the condemnation or other
governmental taking of a Mortgaged Property or REO Property). As to each such
Specially Serviced Mortgage Loan or REO Property, the Liquidation Fee shall be
payable from, and shall be calculated by application of the Liquidation Fee Rate
to, such full or discounted payoff and/or Liquidation Proceeds (excluding any
portion of such payoff and/or proceeds that represents accrued but unpaid
Additional Interest with respect to a Hyper-Amortization Loan after its
Anticipated Repayment Date or accrued but unpaid Default Interest); provided
that no Liquidation Fee will be payable with respect to any such Specially
Serviced Mortgage Loan that becomes a Corrected Mortgage Loan; and provided,
further, that (without limiting the Special Servicer's right to any Workout Fee
that is properly payable therefrom), no Liquidation Fee will be payable from, or
based upon the receipt of, Liquidation Proceeds collected as a result of any
purchase of a Specially Serviced Mortgage Loan or REO Property described in the
parenthetical to the first sentence of this paragraph or in connection with a
condemnation or other governmental taking of a Mortgaged Property or REO
Property.
Notwithstanding anything to the contrary herein, a Liquidation
Fee and a Workout Fee relating to the same Mortgage Loan shall not be paid from
the same proceeds on or with respect to such Mortgage Loan.
The Special Servicer's right to receive the Special Servicing
Fee, the Standby Fee, the Workout Fee and/or the Liquidation Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Special Servicer's responsibilities and obligations under this Agreement.
(d) The Special Servicer shall be entitled to receive as
additional special servicing compensation:
(i) (A) to the extent allocable to the period when any
Mortgage Loan is a Specially Serviced Mortgage Loan or to the extent
allocable to an REO Loan, any Net Default Charges actually collected on
such Mortgage Loan or REO Loan, as the case may be, and (B) assumption
fees, modification fees, charges for beneficiary statements or demands
and any similar fees (excluding Prepayment Premiums) actually collected
on or with respect to Specially Serviced Mortgage Loans or REO Loans;
and
(ii) interest or other income earned on deposits in the REO
Account, if established, in accordance with Section 3.06(b) (but only
to the extent of the Net Investment Earnings, if any, with respect to
the REO Account for each Collection Period).
To the extent the amounts described in clause (i)(B) of the
preceding paragraph are collected by the Master Servicer, the Master Servicer
shall promptly pay such amounts to the Special Servicer and shall not be
required to deposit such amounts in the Certificate Account pursuant to Section
3.04(a). Additional servicing compensation to which the Master Servicer (or, if
so provided by the applicable Sub-Servicing Agreement, any Sub-Servicer retained
thereby) is entitled pursuant to Section 3.11(b) in the form of assumption fees,
modification fees, charges for beneficiary statements or demands and any similar
fees (excluding Prepayment Premiums) collected by the Special Servicer on
Mortgage Loans that are not Specially Serviced Mortgage Loans or REO Loans, or
in the form of amounts collected for checks returned for insufficient funds with
respect to any Mortgage Loans (including, without limitation, Specially Serviced
Mortgage Loans), shall be paid promptly to the Master Servicer by the Special
Servicer.
The Special Servicer shall be required to pay out of its own
funds all overhead, general and administrative expenses incurred by it in
connection with its servicing activities hereunder (including, without
limitation, payment of any amounts due and owing to any Sub-Servicers retained
by it and the premiums for any blanket policy obtained by it insuring against
hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses
are not payable directly out of the Certificate Account or the REO Account and
the Master Servicer is not required to advance such expenses at the direction of
the Special Servicer, and the Special Servicer shall not be entitled to
reimbursement except as expressly provided in this Agreement.
(e) If the Master Servicer or Special Servicer is required
under this Agreement to make a Servicing Advance, but neither does so within 15
days after such Servicing Advance is required to be made, the Trustee shall, if
it has actual knowledge of such failure on the part of the Master Servicer or
Special Servicer, as the case may be, give notice of such failure, as
applicable, to the Master Servicer and/or the Special Servicer. If such
Servicing Advance is not made by the Master Servicer or the Special Servicer
within one Business Day after such notice then (subject to Section 3.11(g)
below), the Trustee shall make such Servicing Advance. Any failure by the Master
Servicer or the Special Servicer to make a Servicing Advance it is required to
make hereunder shall constitute an Event of Default by the Master Servicer or
the Special Servicer, as the case may be, subject to and as provided in Section
7.01(a).
(f) As and to the extent permitted by Section 3.05(a), the
Master Servicer, the Special Servicer (to the extent it has not already been
reimbursed for any such Servicing Advance by the Master Servicer) and the
Trustee shall each be entitled to receive interest at the Reimbursement Rate in
effect from time to time, accrued on the amount of each Servicing Advance made
thereby (out of its own funds) for so long as such Servicing Advance is
outstanding, and such interest will be paid: first, out of any Default Charges
collected on or in respect of the related Mortgage Loan during, and allocable
to, the period, if any, that it was a Specially Serviced Mortgage Loan or an REO
Loan; and second, at any time coinciding with or following the reimbursement of
such Servicing Advance, out of general collections on the Mortgage Loans and any
REO Properties on deposit in the Certificate Account. As and to the extent
provided in Sections 3.03(a) and 3.05(a), the Master Servicer shall reimburse
itself, the Special Servicer or the Trustee, as appropriate, for any Servicing
Advance made thereby as soon as practicable after funds available for such
purpose are deposited in the Certificate Account or a Servicing Account.
(g) Notwithstanding anything to the contrary set forth herein,
none of the Master Servicer, the Special Servicer or the Trustee shall be
required to make any Servicing Advance (including, without limitation, an
Emergency Advance) that it determines in its reasonable, good faith judgment
would constitute a Nonrecoverable Servicing Advance. In addition, Nonrecoverable
Servicing Advances shall be reimbursable pursuant to Section 3.05(a)(vii) out of
general collections on the Mortgage Pool on deposit in the Certificate Account.
The determination by the Master Servicer, the Special Servicer or, if
applicable, the Trustee, that it has made a Nonrecoverable Servicing Advance or
that any proposed Servicing Advance, if made, would constitute a Nonrecoverable
Servicing Advance, shall be evidenced by an Officer's Certificate delivered
promptly to the Trustee (or, if applicable, retained thereby), the Depositor and
the Rating Agencies, setting forth the basis for such determination, together
with (if such determination is prior to the liquidation of the related Mortgage
Loan or REO Property) a copy of an Appraisal of the related Mortgaged Property
or REO Property, as the case may be, which shall have been performed within the
twelve months preceding such determination, and further accompanied by any other
information, including, without limitation, engineers' reports, environmental
surveys, inspection reports, rent rolls, income and expense statements or
similar reports, that the Master Servicer or the Special Servicer may have
obtained and that supports such determination. If such an Appraisal shall not
have been required and performed pursuant to the terms of this Agreement, the
Master Servicer or the Special Servicer, as the case may be, may, subject to its
reasonable and good faith determination that such Appraisal will demonstrate the
nonrecoverability of a Servicing Advance, obtain an Appraisal for such purpose
at the expense of the Trust. The Trustee shall be entitled to rely on any
determination of nonrecoverability that may have been made by the Master
Servicer or the Special Servicer with respect to a particular Servicing Advance,
and the Master Servicer shall be entitled to rely on any determination of
nonrecoverability that may have been made by the Special Servicer with respect
to a particular Servicing Advance.
(h) Notwithstanding anything to the contrary set forth herein,
the Master Servicer shall (at the direction of the Special Servicer if a
Specially Serviced Mortgage Loan or an REO Property is involved) pay directly
out of the Certificate Account any servicing expense that, if paid by the Master
Servicer or the Special Servicer, would constitute a Nonrecoverable Servicing
Advance; provided that the Master Servicer (or the Special Servicer, if a
Specially Serviced Mortgage Loan or an REO Property is involved) has determined
in accordance with the Servicing Standard that making such payment is in the
best interests of the Certificateholders (as a collective whole), as evidenced
by an Officer's Certificate delivered promptly to the Trustee, the Depositor and
the Rating Agencies, setting forth the basis for such determination and
accompanied by any information that the Master Servicer or the Special Servicer
may have obtained that supports such determination.
SECTION 3.12 Inspections; Collection of Financial Statements.
(a) Commencing in 2000, the Master Servicer or, in the case of
any inspection required to be performed 60 days after delinquency, the Special
Servicer, shall, at its own cost and expense, inspect or cause the inspection of
each Mortgaged Property at least once every two years (or, if the related
Mortgage Loan has a then current balance greater than $2,000,000, at least once
every year) and 60 days after delinquency, provided that at least 50% of the
Mortgaged Properties (by both number and aggregate Stated Principal Balances of
the related Mortgage Loans) will be inspected each year by the Master Servicer
(or an entity employed by the Master Servicer for such purpose) or, in
accordance with the second succeeding sentence, by the Special Servicer. The
Master Servicer shall be responsible for such inspections only in respect of (i)
Mortgage Loans that are not Specially Serviced Mortgage Loans and (ii) Corrected
Mortgage Loans. The Special Servicer, subject to statutory limitations or
limitations set forth in the related Mortgage Loan documents, shall perform or
cause to be performed a physical inspection of a Mortgaged Property as soon as
practicable after the servicing of the related Mortgage Loan is transferred
thereto pursuant to Section 3.21(a) and annually thereafter so long as it is a
Specially Serviced Mortgage Loan. The Master Servicer and the Special Servicer
shall each prepare or cause to be prepared as soon as reasonably possible a
written report of each such inspection performed or caused to be performed
thereby detailing the condition of the Mortgaged Property and specifying the
existence of (i) any vacancy in the Mortgaged Property that is, in the
reasonable judgment of the Master Servicer or Special Servicer (or their
respective designees), as the case may be, material and is evident from such
inspection, (ii) any abandonment of the Mortgaged Property, (iii) any change in
the condition or value of the Mortgaged Property that is, in the reasonable
judgment of the Master Servicer or Special Servicer (or their respective
designees), as the case may be, material and is evident from such inspection,
(iv) any waste on or deferred maintenance in respect of the Mortgaged Property
that is evident from such inspection or (v) any capital improvements made that
are evident from such inspection. The Master Servicer and Special Servicer each
shall, within 10 days of the preparation thereof, deliver to the Trustee, the
Directing Certificateholder, the Rating Agencies, each other and, upon request
of a Class F, Class G, Class H, Class J and Class K Certificateholder, such
Holder, a copy of (and, upon request by any such Person, shall promptly discuss
therewith the contents of) each such written report prepared or caused to be
prepared by or on behalf of it. Furthermore, the Master Servicer shall obtain
(and shall deliver to the requesting party and the Trustee) such additional
information with respect to the matters addressed in such written report as the
Special Servicer, and/or the Directing Certificateholder, may reasonably request
and shall cooperate with and reasonably assist the Special Servicer in making
direct inquiries with any Mortgagor to the extent any such direct inquiry by the
Special Servicer would not violate the terms of any applicable Sub-Servicing
Agreement; provided that if the Special Servicer or any such Certificateholder
shall desire such an inquiry to be made of a Mortgagor, and if the subject
Mortgage Loan is then being primary serviced by a Sub-Servicer, then the Master
Servicer shall in each instance (regardless of whether such Mortgage Loan was
originated by such Sub-Servicer), unless otherwise agreed by such Sub-Servicer,
first request that such Sub-Servicer make such inquiry (and the Master Servicer
or the Special Servicer may contact such Mortgagor directly in such instance if
such request has been so made to such Sub-Servicer and the requested information
has not thereafter been obtained by such Sub-Servicer within a reasonable time).
The Trustee shall make available to Certificateholders, Certificate Owners and
prospective Certificateholders and Certificate Owners (which prospective
Certificateholders and Certificate Owners have been certified to it as such by a
Certificateholder or a Certificate Owner), in accordance with Section 8.12(b),
copies of all the written reports delivered to it pursuant to this Section
3.12(a) and, if and to the extent delivered to it in a written or electronic
format, the related additional information referred to in the preceding
sentence. In the absence of actual knowledge that the Master Servicer or the
Special Servicer is in default under this Section 3.12(a), the Trustee shall
have no obligation to confirm that inspections of the Mortgaged Properties are
being performed in accordance with this Section 3.12(a). The preceding sentence
notwithstanding, in the event the Trustee has received, as of December 31 of any
calendar year, inspection reports with respect to less than 50% of the Mortgaged
Properties as set forth in the first sentence of this Section 3.12(a), the
Trustee shall notify the Master Servicer of such fact in writing on or before
January 31 of the immediately succeeding calendar year. The notice provided by
the Trustee to the Master Servicer of the deficiency in the number of inspection
reports provided to the Trustee, shall constitute notice "requiring the same to
be remedied" within the meaning of Section 7.01(a)(vi) hereof and shall so state
on its face. If the Master Servicer does not provide satisfactory evidence
(which shall include the presentation of the required reports) of the
performance of the number of inspections required pursuant to the first sentence
of this Section 3.12(a) within 30 days of such notice, the Master Servicer shall
be deemed to have failed duly to observe and perform in all material respects
its covenants and agreements set forth in this Section 3.12(a).
(b) The Special Servicer, in the case of the Specially
Serviced Mortgage Loans and REO Properties, and the Master Servicer, in the case
of all other Mortgage Loans, shall make reasonable efforts to collect or
otherwise obtain promptly (from the related Mortgagor in the case of a Mortgage
Loan) annual and quarterly operating statements and rent rolls of the related
Mortgaged Property or REO Property (and financial statements of the related
Mortgagor in the case of a Mortgage Loan), whether or not delivery of such items
is required pursuant to the terms of the related Mortgage. The Special Servicer,
in the case of the Specially Serviced Mortgage Loans and REO Properties, and the
Master Servicer, in the case of all other Mortgage Loans, shall promptly: (i)
review all such items as may be collected; (ii) subject to Section 4.02(b),
prepare written reports based on such reviews identifying the revenues,
expenses, Net Operating Income and Debt Service Coverage Ratios for the related
Mortgage Loans and REO Loans and any extraordinary increases or decreases in
expenses or revenues associated with the related Mortgaged Properties and REO
Properties; (iii) deliver copies of the collected items, and subject to Section
4.02(b), prepare the written reports prepared in respect thereof, to the
Trustee, the Directing Certificateholder, the Rating Agencies, each other and,
upon request of a Class F, Class G, Class H, Class J and Class K
Certificateholder, such Holder, in each case within 15 days of its receipt or
preparation pursuant to Section 4.02(b), as applicable (it being understood and
agreed that with respect to Mortgage Loans (including, without limitation,
Specially Serviced Mortgage Loans) that are primary serviced by a Sub-Servicer,
such collected items shall be deemed to have been received by the Master
Servicer or the Special Servicer, as the case may be, at the same time they are
received by the applicable Sub-Servicer); and (iv) promptly upon the request of
any Person referred in the immediately preceding clause (iii), to discuss
therewith the contents of the collected items and the written reports referred
to in the immediately preceding clause (iii). Furthermore, the Master Servicer
shall obtain (and shall deliver to the requesting party and the Trustee) such
additional information with respect to the matters addressed in the collected
items and written reports referred to above as the Special Servicer, and/or the
Directing Certificateholder, and/or a Class F, Class G, Class H, Class J and
Class K Certificateholder, may reasonably request and shall cooperate with and
reasonably assist the Special Servicer in making direct inquiries with any
Mortgagor to the extent any such direct inquiry by the Special Servicer would
not violate the terms of any applicable Sub-Servicing Agreement; provided that
if the Special Servicer or any such Certificateholder shall desire such an
inquiry to be made of a Mortgagor, and if the subject Mortgage Loan is then
being primary serviced by a Sub-Servicer, then the Master Servicer shall in each
instance (regardless of whether such Mortgage Loan was originated by such
Sub-Servicer), unless otherwise agreed by such Sub-Servicer, first request that
such Sub-Servicer make such inquiry (and the Master Servicer or the Special
Servicer may contact such Mortgagor directly in such instance if such request
has been so made to such Sub-Servicer and the requested information has not
thereafter been obtained by such Sub-Servicer within a reasonable time). The
Trustee shall make available to Certificateholders, Certificate Owners and
prospective Certificateholders and Certificate Owners (which prospective
Certificateholders and Certificate Owners have been certified to it as such by a
Certificateholder or a Certificate Owner), in accordance with Section 8.12(b),
copies of all the written reports delivered to it pursuant to this Section
3.12(b) and, if and to the extent delivered to it in written or electronic
format, the related additional information referred to in the preceding
sentence. In the absence of actual knowledge that the Master Servicer or the
Special Servicer is in default under this Section 3.12(b), the Trustee shall
have no obligation to confirm that the Master Servicer or the Special Servicer
has or is attempting to collect any of the items described above in this Section
3.12(b).
SECTION 3.13 Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer will
deliver to the Trustee and the Rating Agencies, and, upon request of a Class F,
Class G, Class H, Class J and Class K Certificateholder, such Holder, with a
copy to the Depositor, on or before April 30 of each year, beginning April 30,
2000, an Officer's Certificate stating that (i) a review of the activities of
the Master Servicer or the Special Servicer, as the case may be, during the
preceding calendar year, and of its performance under this Agreement during such
calendar year, has been made under the signing officer's supervision, (ii) to
the best of such officer's knowledge, based on such review, the Master Servicer
or the Special Servicer, as the case may be, has in all material respects
fulfilled all of its obligations under this Agreement throughout such calendar
year, or, if there has been a material default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof, and (iii) the Master Servicer or the Special Servicer, as
the case may be, has received no notice regarding the qualification or status as
a REMIC of, or otherwise asserting a tax (other than ad valorem real property
taxes or other similar taxes on REO Property) on the income or assets of, any
portion of the Trust Fund from the Internal Revenue Service or from any other
governmental agency or body or, if it has received any such notice, specifying
the details thereof. The signing officer shall have no personal liability with
respect to the content of any such statement, and the Master Servicer or the
Special Servicer, as the case may be, shall be deemed to have made such
statement and shall assume any liability resulting therefrom.
The Master Servicer and the Special Servicer, to the extent
applicable, will reasonably cooperate with the Depositor in conforming any
Officer's Certificate delivered pursuant to this Section 3.13 to requirements
imposed by the Commission on the Depositor in connection with the Commission's
issuance of a no-action letter relating to the Depositor's reporting
requirements in respect of the Trust pursuant to the Exchange Act.
SECTION 3.14 Reports by Independent Public Accountants.
On or before April 30 of each year, beginning April 30, 2000
(or, as to any such year, such earlier date as is contemplated by the last
sentence of this paragraph), each of the Master Servicer and the Special
Servicer, at its expense, shall cause a firm of independent public accountants
that is a member of the American Institute of Certified Public Accountants to
furnish a statement to the Depositor, the Trustee, the Rating Agencies, the
Directing Certificateholder and, upon request of a Class F, Class G, Class H,
Class J and Class K Certificateholder, such Holder, to the effect that such firm
has examined such documents and records as it has deemed necessary and
appropriate relating to the Master Servicer's or the Special Servicer's, as the
case may be, servicing of the Mortgage Loans under this Agreement or the
servicing of mortgage loans similar to the Mortgage Loans under substantially
similar agreements for the preceding calendar year (or during the period from
the date of commencement of the Master Servicer's or the Special Servicer's, as
the case may be, duties hereunder until the end of such preceding calendar year
in the case of the first such certificate) and that, on the basis of such
examination conducted substantially in compliance with generally accepted
auditing standards and the Uniform Single Attestation Program for Mortgage
Bankers, such servicing has been conducted in compliance with similar agreements
except for such significant exceptions or errors in records that, in the opinion
of such firm, generally accepted auditing standards and the Uniform Single
Attestation Program for Mortgage Bankers require it to report, in which case
such exceptions and errors shall be so reported. In rendering its report such
firm may rely, as to matters relating to the direct servicing of securitized
commercial and multifamily mortgage loans by Sub-Servicers, upon comparable
reports of firms of independent certified public accountants rendered on the
basis of examinations conducted in accordance with the same standards (rendered
within one year of such report) with respect to those Sub-Servicers. If the
Depositor notifies the Trustee, the Master Servicer and the Special Servicer on
or before March 1 of any year that such statements are required to be filed with
the Commission as part of the Form 10-K for the Trust covering the prior
calendar year, each of the Master Servicer and the Special Servicer shall
deliver such statement in respect of it by March 15 of such year.
The Master Servicer and the Special Servicer, to the extent
applicable, will reasonably cooperate with the Depositor in conforming any
reports delivered pursuant to this Section 3.14 to requirements imposed by the
Commission on the Depositor in connection with the Commission's issuance of a
no-action letter relating to the Depositor's reporting requirements in respect
of the Trust pursuant to the Exchange Act.
SECTION 3.15 Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall
provide or cause to be provided to the other such party, the Depositor, the
Trustee and the Rating Agencies, and to the OTS, the FDIC, and any other federal
or state banking or insurance regulatory authority that may exercise authority
over any Certificateholder, access to any documentation regarding the Mortgage
Loans and the other assets of the Trust Fund that are within its control which
may be required by this Agreement or by applicable law. Such access shall be
afforded without charge but only upon reasonable prior written request and
during normal business hours at the offices of the Master Servicer or the
Special Servicer, as the case may be, designated by it.
SECTION 3.16 Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee on behalf of
the Certificateholders. The Special Servicer shall sell any REO Property by the
end of the third calendar year beginning after the year in which the Trust
acquires ownership of such REO Property for purposes of Section 860G(a)(8) of
the Code, unless the Special Servicer either (i) is granted an extension of time
(an "REO Extension") by the Internal Revenue Service to sell such REO Property
or (ii) obtains for the Trustee and the REMIC Administrator an Opinion of
Counsel, addressed to the Trustee and the REMIC Administrator, to the effect
that the holding by the Trust of such REO Property subsequent to the end of the
third calendar year beginning after the year in which such acquisition occurred,
will not result in the imposition of taxes on "prohibited transactions" of REMIC
I or REMIC II as defined in Section 860F of the Code or cause REMIC I or REMIC
II to fail to qualify as a REMIC at any time that any Certificates are
outstanding. If the Special Servicer is granted the REO Extension contemplated
by clause (i) of the immediately preceding sentence or obtains the Opinion of
Counsel contemplated by clause (ii) of the immediately preceding sentence, the
Special Servicer shall sell such REO Property within such period longer than
three years following the year that such property was acquired, as is permitted
by such REO Extension or such Opinion of Counsel, as the case may be. Any
reasonable expense incurred by the Special Servicer in connection with its being
granted the REO Extension contemplated by clause (i) of the second preceding
sentence or its obtaining the Opinion of Counsel contemplated by clause (ii) of
the second preceding sentence, shall be an expense of the Trust payable out of
the Certificate Account pursuant to Section 3.05(a). Any REO Extension shall be
requested by the Special Servicer no later than 60 days before the end of the
third calendar year following the year in which the Trust acquired ownership of
the related REO Property.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more accounts
(collectively, the "REO Account"), to be held on behalf of the Trustee in trust
for the benefit of the Certificateholders, for the retention of revenues and
other proceeds derived from each REO Property. The REO Account shall be an
Eligible Account and may consist of one account for all the REO Properties. The
Special Servicer shall deposit, or cause to be deposited, in the REO Account,
within two Business Days of receipt, all REO Revenues, Liquidation Proceeds (net
of all Liquidation Expenses paid therefrom) and Insurance Proceeds received in
respect of an REO Property. The Special Servicer is authorized to pay out of
related Liquidation Proceeds any Liquidation Expenses incurred in respect of an
REO Property and outstanding at the time such proceeds are received. Funds in
the REO Account may be invested only in Permitted Investments in accordance with
Section 3.06. The Special Servicer shall be entitled to make withdrawals from
the REO Account to pay itself, as additional servicing compensation in
accordance with Section 3.11(d), interest and investment income earned in
respect of amounts held in the REO Account as provided in Section 3.06(b) (but
only to the extent of the Net Investment Earnings with respect to the REO
Account for any Collection Period). The Special Servicer shall give notice to
the other parties hereto of the location of the REO Account when first
established and of the new location of the REO Account prior to any change
thereof.
(c) The Special Servicer shall withdraw from the REO Account
funds necessary for the proper operation, management, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
the REO Account relating to such REO Property. Within one Business Day following
the end of each Collection Period, the Special Servicer shall withdraw from the
REO Account and deposit into the Certificate Account or deliver to the Master
Servicer (which shall deposit such amounts into the Certificate Account) the
aggregate of all amounts received in respect of each REO Property during such
Collection Period, net of any withdrawals made out of such amounts pursuant to
the preceding sentence; provided that the Special Servicer may retain in the REO
Account such portion of proceeds and collections as may be necessary to maintain
a reserve of sufficient funds for the proper operation, management, maintenance
and disposition of the related REO Property (including without limitation the
creation of a reasonable reserve for repairs, replacements and necessary capital
improvements and other related expenses), such reserve not to exceed an amount
sufficient to cover such items to be incurred during the following twelve-month
period.
(d) The Special Servicer shall keep and maintain separate
records, on a property-by-property basis, for the purpose of accounting for all
deposits to, and withdrawals from, the REO Account pursuant to Section 3.16(b)
or (c).
SECTION 3.17 Management of REO Property.
(a) If title to any REO Property is acquired, the Special
Servicer shall manage, conserve, protect, operate and lease such REO Property
for the benefit of the Certificateholders solely for the purpose of its timely
disposition and sale in a manner that does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or result in the receipt by the Trust Fund of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code.
Subject to the foregoing, however, the Special Servicer shall have full power
and authority to do any and all things in connection therewith as are in the
best interests of and for the benefit of the Certificateholders (as determined
by the Special Servicer in its good faith and reasonable judgment). Subject to
this Section 3.17, the Special Servicer may earn "net income from foreclosure
property" within the meaning of Code Section 860G(d) if it determines that
earning such income is in the best interests of Certificateholders on a net
after-tax basis as compared with net leasing such REO Property or operating such
REO Property on a different basis. In connection therewith, the Special Servicer
shall deposit or cause to be deposited on a daily basis (and in no event later
than the second Business Day following receipt of such funds) in the applicable
REO Account all revenues received by it with respect to each REO Property and
the related REO Loan, and shall withdraw from the REO Account, to the extent of
amounts on deposit therein with respect to such REO Property, funds necessary
for the proper operation, management, leasing and maintenance of such REO
Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such
REO Property;
(ii) all real estate taxes and assessments in respect of such
REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease
such REO Property.
To the extent that amounts on deposit in the REO Account in respect of
any REO Property are insufficient for the purposes set forth in clauses (i)
through (iv) above with respect to such REO Property, the Special Servicer
shall, subject to Section 3.19(d), direct the Master Servicer to make (and the
Master Servicer shall so make) Servicing Advances in such amounts as are
necessary for such purposes unless (as evidenced in the manner contemplated by
Section 3.11(g)) the Special Servicer or the Master Servicer determines, in its
reasonable, good faith judgment, that such payment would be a Nonrecoverable
Servicing Advance.
(b) Without limiting the generality of the foregoing, the
Special Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any
New Lease with respect to any REO Property, if the New Lease by its
terms will give rise to any income that does not constitute Rents from
Real Property;
(ii) permit any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO
Property, other than the completion of a building or other improvement
thereon, and then only if more than 10% of the construction of such
building or other improvement was completed before default on the
related Mortgage Loan became imminent, all within the meaning of
Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than
an Independent Contractor, to Directly Operate, any REO Property on any
date more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer as a Servicing
Advance) to the effect that such action will not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code at any time that it is held by the Trust Fund, in which case the
Special Servicer may take such actions as are specified in such Opinion of
Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the acquisition date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be
an expense of the Trust Fund) shall be reasonable and customary in
light of the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be
administered to require, that the Independent Contractor (A) pay all
costs and expenses incurred in connection with the operation and
management of such REO Property, including, without limitation, those
listed in subsection (a) hereof, and (B) remit all related revenues
collected (net of its fees and such costs and expenses) to the Special
Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating
to any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Special Servicer of any of
its duties and obligations hereunder with respect to the operation and
management of any such REO Property; and
(v) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties
and obligations in connection with the operation and management of such
REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(d) When and as necessary, the Special Servicer shall send to
the Trustee and the Master Servicer a statement prepared by the Special Servicer
setting forth the amount of net income or net loss, as determined for federal
income tax purposes, resulting from the operation and management of a trade or
business on, the furnishing or rendering of a non-customary service to the
tenants of, or the receipt of any other amount not constituting Rents from Real
Property in respect of, any REO Property in accordance with Sections 3.17(a) and
3.17(b).
SECTION 3.18 Sale of Mortgage Loans and REO Properties.
(a) The parties hereto may sell or purchase, or permit the
sale or purchase of, a Mortgage Loan or REO Property only on the terms and
subject to the conditions set forth in this Section 3.18 or as otherwise
expressly provided in or contemplated by Sections 2.03 and 9.01.
(b) If the Special Servicer has determined, in its good faith
and reasonable judgment, that any Defaulted Mortgage Loan will become the
subject of a foreclosure sale or similar proceeding, and that the sale of such
Mortgage Loan under the circumstances provided in this Section 3.18(b) or in
Section 3.18(c) is in accordance with the Servicing Standard, the Special
Servicer shall promptly so notify in writing the Trustee, the Master Servicer
and each Rating Agency, and the Trustee shall, within 10 days after receipt of
such notice, notify all the Certificateholders of the Controlling Class. The
Majority Certificateholder of the Controlling Class may at its option purchase
from the Trust, at a price equal to the applicable Purchase Price, any such
Defaulted Mortgage Loan. The Purchase Price for any Mortgage Loan purchased
under this paragraph (b) shall be deposited into the Certificate Account, and
the Trustee, upon receipt of an Officer's Certificate from the Master Servicer
to the effect that such deposit has been made, shall release or cause to be
released to the Certificateholder(s) effecting such purchase (or any designee
thereof) the related Mortgage File, and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be provided to it and are reasonably necessary to vest in the
Certificateholder(s) effecting such purchase (or any designee thereof) ownership
of such Mortgage Loan. In connection with any such purchase, the Special
Servicer shall deliver the related Servicing File to the Certificateholder(s)
effecting such purchase (or any designee thereof).
(c) If the Majority Certificateholder of the Controlling Class
has not purchased any Defaulted Mortgage Loan described in the first sentence of
Section 3.18(b) within 15 days of its having received notice in respect thereof
pursuant to Section 3.18(b) above, either the Special Servicer or, subject to
the Special Servicer's prior rights in such regard, the Master Servicer may at
its option purchase such Mortgage Loan from the Trust, at a price equal to the
Purchase Price. The Purchase Price for any such Mortgage Loan purchased under
this paragraph (c) shall be deposited into the Certificate Account, and the
Trustee, upon receipt of an Officer's Certificate from the Master Servicer to
the effect that such deposit has been made, shall release or cause to be
released to the Master Servicer or the Special Servicer, as applicable, the
related Mortgage File, and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be provided to
it and are reasonably necessary to vest in the Master Servicer or the Special
Servicer, as applicable, the ownership of such Mortgage Loan. In connection with
any such purchase by the Master Servicer, the Special Servicer shall deliver the
related Servicing File to the Master Servicer.
(d) The Special Servicer may offer to sell or otherwise
realize upon any Defaulted Mortgage Loan not otherwise purchased pursuant to
Section 3.18(b) or Section 3.18(c) above, if and when the Special Servicer
determines, consistent with the Servicing Standard, that such a sale would be in
the best economic interests of the Trust. Such offer shall be made in a
commercially reasonable manner (which, for purposes hereof, includes an offer to
sell without representation or warranty other than customary warranties of
title, loan status, condition and similar customary matters, if liability for
breach thereof is limited to recourse against the Trust) for a period of not
less than 30 days. Unless the Special Servicer determines that acceptance of any
offer would not be in the best economic interests of the Trust, the Special
Servicer shall accept the highest cash offer received from any Person that
constitutes a fair price for such Mortgage Loan. In the absence of any offer
determined as provided below to be fair, the Special Servicer shall proceed with
respect to such Defaulted Mortgage Loan in accordance with Section 3.09 and,
otherwise, in accordance with the Servicing Standard.
The Special Servicer shall use its best efforts to solicit
offers for each REO Property in such manner as will be reasonably likely to
realize a fair price within the time period provided for by Section 3.16(a). The
Special Servicer shall accept the first (and, if multiple offers are received
contemporaneously, highest) cash offer received from any Person that constitutes
a fair price (determined pursuant to Section 3.18(e) below) for such REO
Property. If the Special Servicer reasonably believes that it will be unable to
realize a fair price (determined pursuant to Section 3.18(e) below) for any REO
Property within the time constraints imposed by Section 3.16(a), the Special
Servicer shall dispose of such REO Property upon such terms and conditions as
the Special Servicer shall deem necessary and desirable to maximize the recovery
thereon under the circumstances and, in connection therewith, shall accept the
highest outstanding cash offer, regardless of from whom received.
The Special Servicer shall give the Trustee and the Master
Servicer not less than five Business Days' prior written notice of its intention
to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section
3.18(d). No Interested Person shall be obligated to submit an offer to purchase
any such Mortgage Loan or REO Property, and notwithstanding anything to the
contrary herein, neither the Trustee, in its individual capacity, nor any of its
respective Affiliates may make an offer for or purchase any Defaulted Mortgage
Loan or any REO Property pursuant hereto.
(e) Whether any cash offer constitutes a fair price for any
Defaulted Mortgage Loan or REO Property, as the case may be, for purposes of
Section 3.18(d), shall be determined by the Special Servicer or, if such cash
offer is from an Interested Person, by the Trustee. In determining whether any
offer received from an Interested Person represents a fair price for any such
Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely
on the most recent Appraisal or updated Appraisal conducted in accordance with
this Agreement within the preceding 12-month period or, in the absence of any
such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser,
retained by the Special Servicer. Such appraiser shall be selected by the
Special Servicer if neither the Special Servicer nor any Affiliate thereof is
making an offer with respect to a Defaulted Mortgage Loan or REO Property and
shall be selected by the Trustee if the Special Servicer or an Affiliate thereof
is making such an offer. The cost of any such narrative appraisal shall be
advanced by the Master Servicer, at the direction of the Special Servicer, and
shall constitute a Servicing Advance. When any Interested Person is among those
making an offer with respect to a Defaulted Mortgage Loan or REO Property, the
Special Servicer shall require that all offers be submitted in writing and be
accompanied by a refundable deposit of cash in an amount equal to 5% of the
offered amount. In determining whether any offer from a Person other than an
Interested Person constitutes a fair price for any such Mortgage Loan or REO
Property, the Special Servicer shall take into account (in addition to the
results of any Appraisal, updated Appraisal or narrative Appraisal that it may
have obtained pursuant to this Agreement within the prior 12 months), and in
determining whether any offer from an Interested Person constitutes a fair price
for any such Mortgage Loan or REO Property, any appraiser or other expert in
real estate matters shall be instructed to take into account, as applicable,
among other factors, the period and amount of any delinquency on the affected
Mortgage Loan, the occupancy level and physical condition of the Mortgaged
Property or REO Property, the state of the local economy and the obligation to
dispose of any REO Property within the time period specified in Section 3.16(a).
Notwithstanding the other provisions of this Section 3.18, no cash offer from
any Interested Person or any Affiliate thereof in an amount less than the
related Purchase Price shall constitute a fair price for any Defaulted Mortgage
Loan or REO Property unless such offer is the highest cash offer received and at
least two additional offers (not including the offers of Interested Persons or
any Affiliates thereof) have been received from Independent third parties
reflecting prices less than the related Purchase Price. The Purchase Price for
any Defaulted Mortgage Loan or REO Property shall in all cases be deemed a fair
price.
(f) Subject to Sections 3.18(a) through 3.18(e) above, the
Special Servicer shall act on behalf of the Trustee in negotiating and taking
any other action necessary or appropriate in connection with the sale of any
Defaulted Mortgage Loan or REO Property, and the collection of all amounts
payable in connection therewith. In connection therewith, the Special Servicer
may charge prospective offerors, and may retain, fees that approximate the
Special Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or evaluating offers without obligation to deposit such
amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or
any REO Property shall be final and without recourse to the Trustee or the Trust
(except such recourse imposed by those representations and warranties typically
given in such transactions, any prorations applied thereto and any customary
closing matters), and if such sale is consummated in accordance with the terms
of this Agreement, none of the Special Servicer, the Master Servicer or the
Trustee shall have any liability to any Certificateholder with respect to the
purchase price therefor accepted by the Special Servicer or the Trustee.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property
shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes
in the REMIC Provisions made subsequent to the Startup Day allow a sale for
other consideration).
(h) Notwithstanding any of the foregoing paragraphs of this
Section 3.18, the Special Servicer shall not be obligated to accept the highest
cash offer if the Special Servicer determines, in accordance with the Servicing
Standard, that rejection of such offer would be in the best interests of the
Certificateholders, and the Special Servicer may accept a lower cash offer (from
any Person other than itself or an Affiliate) if it determines, in accordance
with the Servicing Standard, that acceptance of such offer would be in the best
interests of the Certificateholders (for example, if the prospective buyer
making the lower offer is more likely to perform its obligations or the terms
(other than price) offered by the prospective buyer making the lower offer are
more favorable).
SECTION 3.19 Additional Obligations of the Master
Servicer and the Special Servicer.
(a) The Master Servicer shall maintain at its Primary
Servicing Office and shall, upon reasonable advance written notice, make
available during normal business hours for review by each Rating Agency and by
any Certificateholder or Certificate Owner or any Person identified to the
Master Servicer as a prospective transferee of a Certificate or an interest
therein, copies of the Servicing Files; provided that, if the Master Servicer in
its reasonable, good faith determination believes that any item of information
contained in such Servicing Files is of a nature that it should be conveyed to
all Certificateholders at the same time, it shall, as soon as reasonably
possible following its receipt of any such item of information, disclose such
item of information to the Trustee as part of the reports to be delivered to the
Trustee by the Master Servicer pursuant to Section 4.02(b), and until the
Trustee has either disclosed such information to all Certificateholders in a
Distribution Date Statement or has properly filed such information with the
Commission on behalf of the Trust under the Exchange Act, the Master Servicer
shall be entitled to withhold such item of information from any
Certificateholder or Certificate Owner or prospective transferee of a
Certificate or an interest therein; and provided, further, that the Master
Servicer shall not be required to make particular items of information contained
in the Servicing File for any Mortgage Loan available to any Person if the
disclosure of such particular items of information is expressly prohibited by
the provisions of any related Mortgage Loan documents. Except as set forth in
the provisos to the preceding sentence, copies of all or any portion of any
Servicing File are to be made available by the Master Servicer upon request;
however, the Master Servicer shall be permitted to require payment of a sum
sufficient to cover the reasonable out-of-pocket costs and expenses of providing
such service (other than with respect to the Rating Agencies). The Special
Servicer shall, as to each Specially Serviced Mortgage Loan and REO Property,
promptly deliver to the Master Servicer a copy of each document or instrument
added to the related Servicing File, and the Master Servicer shall in no way be
in default under this Section 3.19(a) solely by reason of the Special Servicer's
failure to do so.
In connection with providing access to or copies of the items
described in the preceding paragraph, the Master Servicer may require, unless
the Depositor directs otherwise, (a) in the case of Certificate Owners, a
written confirmation executed by the requesting Person, in form reasonably
satisfactory to the Master Servicer, generally to the effect that such Person is
a beneficial holder of Certificates and will otherwise keep such information
confidential and (b) in the case of a prospective purchaser, confirmation
executed by the requesting Person generally to the effect that such Person is a
prospective purchaser of a Certificate or an interest therein, is requesting the
information for use in evaluating a possible investment in Certificates and will
otherwise keep such information confidential. All Certificateholders, by the
acceptance of their Certificates, shall be deemed to have agreed to keep such
information confidential, except to the extent that the Depositor grants written
permission to the contrary. The Master Servicer shall not be liable for the
dissemination of information in accordance with this Section 3.19(a).
(b) Within 60 days (or within such longer period as the
Special Servicer is (as certified thereby to the Trustee in writing) diligently
and in good faith proceeding to obtain the Appraisal referred to below) after
the earliest of (i) the date on which any Mortgage Loan becomes a Modified
Mortgage Loan, (ii) the 60th day following the occurrence of any uncured
delinquency in Monthly Payments with respect to any Mortgage Loan, (iii) the
date on which a receiver is appointed in respect of the Mortgaged Property
securing any Mortgage Loan, (iv) the date on which the Mortgagor under any
Mortgage Loan becomes the subject of bankruptcy or insolvency proceedings, and
(v) the date on which the Mortgaged Property securing any Mortgage Loan becomes
an REO Property (each such Mortgage Loan and any related REO Loan, until it
ceases to be such in accordance with the following paragraph, a "Required
Appraisal Loan"), the Special Servicer shall obtain an Appraisal of the related
Mortgaged Property; unless an Appraisal thereof had previously been received
within the prior twelve months. The cost of such Appraisal shall be advanced by
the Master Servicer, subject to Section 3.19(d), such Advance to be made at the
direction of the Special Servicer when the Appraisal is received by the Special
Servicer. For purposes of this Section 3.19(b), an Appraisal may, in the case of
any Mortgage Loan with an outstanding principal balance of less than $2,000,000
only, consist solely of an internal valuation performed by the Special Servicer.
With respect to each Required Appraisal Loan (unless such loan
has become a Corrected Mortgage Loan and has remained current for twelve
consecutive Monthly Payments, and no other Servicing Transfer Event has occurred
with respect thereto during such twelve months, in which case it will cease to
be a Required Appraisal Loan), the Special Servicer shall, within 30 days of
each anniversary of such loan's becoming a Required Appraisal Loan, order an
update of the prior Appraisal (the cost of which shall be advanced by the Master
Servicer as a Servicing Advance at the direction of the Special Servicer,
subject to Section 3.19(d)). Based upon such Appraisal, the Special Servicer
shall redetermine and report to the Trustee and the Master Servicer the
Appraisal Reduction Amount, if any, with respect to such loan.
(c) The Master Servicer and the Special Servicer shall each
deliver to the other and to the Trustee (for inclusion in the Mortgage File)
copies of all Appraisals, environmental reports and engineering reports (or, in
each case, updates thereof) obtained with respect to any Mortgaged Property or
REO Property. Upon the request of any Rating Agency or any Class F, Class G,
Class H, Class J and Class K Certificateholder, the Master Servicer and the
Special Servicer shall each deliver copies of any of the items delivered
pursuant to the preceding sentence to such requesting Person.
(d) No more frequently than once per calendar month, the
Special Servicer may require the Master Servicer, and the Master Servicer shall
be obligated, to reimburse the Special Servicer for any Servicing Advances made
by the Special Servicer, but not previously reimbursed (whether pursuant to
Section 3.05(a), this Section 3.19(d) or otherwise) to the Special Servicer, and
to pay the Special Servicer interest thereon at the Reimbursement Rate from the
date made to, but not including, the date of reimbursement. Such reimbursement
and any accompanying payment of interest shall be made within ten (10) days of
the request therefor by wire transfer of immediately available funds to an
account designated by the Special Servicer. Upon the Master Servicer's
reimbursement to the Special Servicer of any Servicing Advance and payment to
the Special Servicer of interest thereon, all in accordance with this Section
3.19(d), the Master Servicer shall for all purposes of this Agreement be deemed
to have made such Servicing Advance at the same time as the Special Servicer
originally made such Advance, and accordingly, the Master Servicer shall be
entitled to reimbursement for such Advance, together with Advance Interest
thereon, at the same time, in the same manner and to the same extent as the
Master Servicer would otherwise have been entitled if it had actually made such
Servicing Advance.
Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer (i) is required under any other provision of
this Agreement to direct the Master Servicer to make a Servicing Advance or (ii)
is otherwise aware a reasonable period in advance that it is reasonably likely
that the Special Servicer will incur a cost or expense that will, when incurred,
constitute a Servicing Advance, the Special Servicer shall (in the case of
clause (i) preceding), and shall use reasonable efforts to (in the case of
clause (ii) preceding), request that the Master Servicer make such Servicing
Advance, such request to be made in writing and in a timely manner that does not
materially and adversely affect the interests of any Certificateholder and at
least five Business Days prior to the date on which failure to make such
Servicing Advance would (with notice from the Trustee regardless of whether such
notice is actually received) constitute an Event of Default pursuant to Section
7.01(a)(v); provided, however, that the Special Servicer shall have an
obligation to make any Emergency Advance or any other Servicing Advance with
respect to which it would, under the circumstances, be inconsistent with the
Servicing Standard for the Special Servicer to request that the Master Servicer
make such Servicing Advance (in lieu of making such Servicing Advance itself and
seeking reimbursement therefor as provided herein); and provided, further, that
the Special Servicer shall, with respect to Specially Serviced Mortgage Loans
and REO Properties, make any Servicing Advance that it fails to timely request
the Master Servicer to make. The Master Servicer shall have the obligation to
make any such Servicing Advance that it is requested by the Special Servicer to
make within five Business Days of the Master Servicer's receipt of such request
and such information and documents as are reasonably necessary for the Master
Servicer to make such Servicing Advance. Subject to the foregoing, the Special
Servicer shall be relieved of any obligations with respect to a Servicing
Advance that it timely requests the Master Servicer to make (regardless of
whether or not the Master Servicer shall make such Servicing Advance), other
than an Emergency Advance or any other Servicing Advance with respect to which
it would, under the circumstances, be inconsistent with the Servicing Standard
for the Special Servicer to request that the Master Servicer make such Servicing
Advance (in lieu of making such Servicing Advance itself and seeking
reimbursement therefor as provided herein). The Master Servicer shall be
entitled to reimbursement for any Servicing Advance made by it at the direction
of the Special Servicer, together with Advance Interest thereon, at the same
time, in the same manner and to the same extent as the Master Servicer is
entitled with respect to any other Servicing Advance made thereby.
Notwithstanding the foregoing provisions of this Section
3.19(d) or any other provision of this Agreement to the contrary, the Master
Servicer shall not be required to reimburse the Special Servicer for, or make at
the Special Servicer's direction, any Servicing Advance if the Master Servicer
determines in its reasonable, good faith judgment that the Servicing Advance
which the Special Servicer is directing the Master Servicer to reimburse it for
or make hereunder, although not characterized by the Special Servicer as a
Nonrecoverable Servicing Advance, is or would be, if made, a Nonrecoverable
Servicing Advance. The Master Servicer shall notify the Special Servicer and the
Trustee in writing of such determination. Such notice shall not obligate the
Special Servicer to make such Servicing Advance.
(e) The Master Servicer shall deliver to the Trustee for
deposit in the Distribution Account on each Master Servicer Remittance Date,
without any right of reimbursement therefor, an amount equal to the lesser of
(i) the aggregate of all Prepayment Interest Shortfalls incurred in connection
with Principal Prepayments received in respect of the Mortgage Pool during the
most recently ended Collection Period, and (ii) that portion of its aggregate
Master Servicing Fee for the related Collection Period that is, in the case of
each and every Mortgage Loan and REO Loan, calculated at 0.02% per annum,
together with the aggregate Prepayment Interest Excesses received during such
Collection Period.
(f) Except under the same circumstances that it would be
permitted to waive a prepayment lockout provision in the subject Mortgage Loan
pursuant to Section 3.20(a), neither the Master Servicer nor the Special
Servicer shall consent to any Mortgagor's prepaying its Mortgage Loan, partially
or in its entirety, if the Mortgagor would be prohibited from doing so without
such consent.
(g) The Master Servicer shall not exercise any discretionary
right it has with respect to any Mortgage Loan pursuant to the related Mortgage
Note or Mortgage to apply any amounts maintained as an escrow or reserve to the
principal balance of such Mortgage Loan except in the case of a default
thereunder.
SECTION 3.20 Modifications, Waivers, Amendments and Consents.
(a) The Master Servicer (as to non-Specially Serviced
Mortgage Loans) and the Special Servicer (as to Specially Serviced Mortgage
Loans, and as to consents to actions of the Master Servicer) each may,
consistent with the Servicing Standard, agree to any modification, waiver or
amendment of any term of, forgive or defer the payment of interest (including,
without limitation, Default Interest and Additional Interest) on and principal
of, forgive late payment charges and Prepayment Premiums on, permit the release,
addition or substitution of collateral securing, and/or permit the release of
the Mortgagor on or any guarantor of any Mortgage Loan it is required to service
and administer hereunder (except that any assumption with respect to a Mortgage
Loan serviced and administered by the Master Servicer must also be consented to
by the Special Servicer, which consent shall not be unreasonably withheld),
without the consent of the Trustee or any Certificateholder, subject, however,
to each of the following limitations, conditions and restrictions:
(i) other than as expressly provided in Section 3.02 (with
respect to Default Charges), Section 3.08 (with respect to due-on-sale
and due-on-encumbrance clauses) and Section 3.20(f) (with respect to
Additional Interest), neither the Master Servicer nor the Special
Servicer shall agree to any modification, waiver or amendment of any
term of, or take any of the other acts referenced in this Section
3.20(a) with respect to, any Mortgage Loan it is required to service
and administer hereunder that would affect the amount or timing of any
related payment of principal, interest or other amount payable
thereunder or, in the Master Servicer's or the Special Servicer's good
faith and reasonable judgment, materially alter the security for such
Mortgage Loan or reduce the likelihood of timely payment of amounts due
thereon or, to the extent required by the REMIC Provisions, materially
increase, substitute or otherwise alter the collateral for the Mortgage
Loan (other than the alteration or construction of improvements
thereon) or any guarantee or credit enhancement contract with respect
thereto (other than the substitution of a similar commercially
available credit enhancement contract); provided, however, the Special
Servicer may agree to any modification, waiver or amendment of any term
of, or take any of the other acts referenced in this Section 3.20(a)
with respect to, a Specially Serviced Mortgage Loan that would have any
such effect, but only if a material default on such Mortgage Loan has
occurred or, in the Special Servicer's reasonable and good faith
judgment, a default in respect of payment on such Mortgage Loan is
reasonably foreseeable, and such modification, waiver, amendment or
other action is reasonably likely to produce a greater recovery to
Certificateholders (as a collective whole) on a present value basis
(the relevant discounting of anticipated collections that will be
distributable to Certificateholders to be performed at the related Net
Mortgage Rate (or, in the case of a Hyper-Amortization Loan after its
Anticipated Repayment Date, the related Net Mortgage Rate in effect
immediately prior to such Anticipated Repayment Date)), than would
liquidation;
(ii) the Special Servicer may not, in connection with any
particular extension, extend the maturity date of any Specially
Serviced Mortgage Loan beyond the date which is two years prior to the
Rated Final Distribution Date, or beyond the date which is 10 years
prior to the expiration date of any related Ground Lease;
(iii) unless the proviso in Section 3.20(a)(i) above applies,
neither the Master Servicer nor the Special Servicer, as applicable,
shall make or permit or consent to, as applicable, any modification,
waiver or amendment of any term of, referenced in this Section 3.20(a)
or in Sections 3.08 or 3.20(f) with respect to, any Mortgage Loan not
otherwise permitted by this Section 3.20(a) or in Sections 3.08 or
3.20(f) that would constitute a "significant modification" of such
Mortgage Loan within the meaning of Treasury Regulations Section
1.860G-2(b) (neither the Master Servicer nor the Special Servicer shall
be liable for decisions made under this subsection which were made in
good faith and, unless it would constitute bad faith or negligence to
do so, each of the Master Servicer and the Special Servicer may rely on
Opinions of Counsel in making such decisions);
(iv) neither the Master Servicer nor the Special Servicer
shall permit any Mortgagor to add or substitute any collateral for an
outstanding Mortgage Loan, which additional or substitute collateral
constitutes real property, unless (A) the Special Servicer shall have
first determined in accordance with the Servicing Standard, based upon
a Phase I Environmental Assessment (and such additional environmental
testing as the Special Servicer deems necessary and appropriate)
prepared by an Independent Person who regularly conducts Phase I
Environmental Assessments (and such additional environmental testing),
at the expense of the Mortgagor, that such additional or substitute
collateral is in compliance with applicable environmental laws and
regulations and that there are no circumstances or conditions present
with respect to such new collateral relating to the use, management or
disposal of any Hazardous Materials for which investigation, testing,
monitoring, containment, clean-up or remediation would be required
under any then applicable environmental laws and/or regulations and (B)
in the case of substitutions of collateral only, the Master Servicer or
the Special Servicer, as the case may be, have obtained written
confirmation from each Rating Agency that such substitution will not
result in the downgrade, qualification (if applicable) or withdrawal of
any rating then assigned to any Class of Certificates;
(v) neither the Master Servicer nor the Special Servicer shall
release any collateral securing an outstanding Mortgage Loan
(including, without limitation, as part of a substitution of
collateral), except in connection with a payment in full or a
defeasance pursuant to the terms of the related Mortgage Loan or,
subject to the other provisions of this Section 3.20, a discounted
payoff of such Mortgage Loan, or except as provided in Section 3.09(d),
or except where Section 3.20(a)(iii) applies and the Rating Agencies
have been notified in writing and (A) either (1) the use of the
collateral to be released will not, in the Master Servicer's or Special
Servicer's, as the case may be, good faith and reasonable judgment,
materially and adversely affect the Net Operating Income being
generated by or the use of the related Mortgaged Property, or (2) there
is a corresponding principal paydown of such Mortgage Loan in an amount
at least equal to, or a delivery of substitute collateral with an
appraised value at least equal to, the appraised value of the
collateral to be released, (B) the remaining Mortgaged Property and any
substitute collateral is, in the Master Servicer's or Special
Servicer's, as the case may be, good faith and reasonable judgment,
adequate security for the remaining Mortgage Loan and (C) if the
collateral that is being released has an Appraised Value in excess of
$3,000,000, or if any substitution of collateral is to be made, the
Rating Agencies have each confirmed in writing that such release and/or
substitution would not result in the downgrade, qualification (if
applicable) or withdrawal of the rating then assigned by Moody's, DCR
and/or S&P, as applicable, to any Class of Certificates; and
(vi) Except to the extent the Special Servicer determines that
a modification, waiver or amendment is required for the best interests
of all Certificateholders in accordance with the Servicing Standard,
the Special Servicer shall not agree to any modification, waiver or
amendment of any term of, or take any of the other actions referenced
in this Section 3.20(a), with respect to any Specially Serviced
Mortgage Loan if such action would not be generally consistent with the
Asset Status Report approved by the Directing Certificateholder or the
Certificateholders, as applicable, in accordance with Section 3.21,
unless it shall have proposed such action to the Directing
Certificateholder in the same manner as the Asset Status Report as
provided in the second paragraph of Section 3.21(d).
provided that (1) the limitations, conditions and restrictions set forth in
clauses (i), (ii), (iv), (v) and (vi) above shall not apply to any of the acts
referenced in this Section 3.20(a) in respect of any Mortgage Loan that either
occurs automatically, or results from the exercise of a unilateral option by the
related borrower within the meaning of Treasury Regulations Section
1.1001-3(c)(2)(iii), in any event under the terms of such Mortgage Loan in
effect on the Closing Date, and (2) notwithstanding clauses (i) through (vi)
above, neither the Master Servicer nor the Special Servicer shall be required to
oppose the confirmation of a plan in any bankruptcy or similar proceeding
involving a Mortgagor if in their reasonable and good faith judgment such
opposition would not ultimately prevent the confirmation of such plan or one
substantially similar. With respect to a request to the Special Servicer from
the Master Servicer for approval for a modification, waiver or consent with
respect to a Mortgage Loan that would not require Rating Agency review, the
Special Servicer shall notify the Master Servicer of its decision within five
Business Days of receiving notice (and all supporting documentation reasonably
required by the Special Servicer for its analysis) from the Master Servicer of
the Master Servicer's decision to approve the modification, wavier or consent.
(b) The Special Servicer shall have no liability to the Trust,
the Certificateholders or any other Person if its analysis and determination
that the modification, waiver, amendment or other action contemplated by Section
3.20(a) is reasonably likely to produce a greater recovery to Certificateholders
on a present value basis than would liquidation, should prove to be wrong or
incorrect, so long as the analysis and determination were made on a reasonable
basis in good faith by the Special Servicer and the Special Servicer has
complied with the Servicing Standard in ascertaining the pertinent facts. Each
such determination shall be evidenced by an Officer's Certificate to such effect
to be delivered by the Special Servicer to the Trustee. The Special Servicer
shall include with any such Officer's Certificate the appraisals and other
supporting documentation forming the basis for its conclusion.
(c) Any payment of interest which is deferred pursuant to
Section 3.20(a) shall not, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit or that such
interest may actually be capitalized.
(d) The Master Servicer (as to non-Specially Serviced Mortgage
Loans) and the Special Servicer (as to Specially Serviced Mortgage Loans, and as
to consents of actions of the Master Servicer) each may, as a condition to its
granting any request by a Mortgagor for consent, modification, waiver or
indulgence or any other matter or thing, the granting of which is within the
Master Servicer's or Special Servicer's, as the case may be, discretion pursuant
to the terms of the instruments evidencing or securing the related Mortgage Loan
and is permitted by the terms of this Agreement, require that such Mortgagor pay
to it, as additional servicing compensation, a reasonable fee relating to such
consent, modification, waiver or indulgence (not to exceed 1.0% of the unpaid
principal balance of the related Mortgage Loan) for the additional services
performed in connection with such request, together with any related costs and
expenses incurred by it.
(e) All modifications, waivers, amendments and other actions
entered into or taken in respect of the Mortgage Loans pursuant to the preceding
subsections of this Section 3.20 shall be in writing. Each of the Master
Servicer and the Special Servicer shall notify the other such party and the
Trustee, in writing, of any modification, waiver, amendment or other action
entered into or taken in respect of any Mortgage Loan pursuant to this Section
3.20 and the date thereof, and shall deliver to the Trustee or the related
Custodian for deposit in the related Mortgage File (with a copy to the other
such party), an original counterpart of the agreement relating to such
modification, waiver, amendment or other action, promptly (and in any event
within 10 Business Days) following the execution thereof. In addition, following
the execution of any modification, waiver or amendment agreed to by the Special
Servicer pursuant to Section 3.20(a) above, the Special Servicer shall deliver
to the Master Servicer and the Trustee an Officer's Certificate setting forth in
reasonable detail the basis of the determination made by it pursuant to clause
(i) of Section 3.20(a).
(f) With respect to any Hyper-Amortization Loan after its
Anticipated Repayment Date, the Master Servicer (or, if the Hyper-Amortization
Loan is a Specially Serviced Mortgage Loan, the Special Servicer) shall be
permitted, in its discretion, to waive (such waiver to be in writing addressed
to the related Mortgagor, with a copy to the Trustee) all or any accrued
Additional Interest if, prior to the related maturity date, the related
Mortgagor has requested the right to prepay the Mortgage Loan in full together
with all payments required by the Mortgage Loan in connection with such
prepayment except for all or a portion of accrued Additional Interest; provided,
that the Master Servicer's (or, if the Hyper-Amortization Loan is a Specially
Serviced Mortgage Loan, the Special Servicer's) determination to waive the right
to such accrued Additional Interest is reasonably likely to produce a greater
payment to Certificateholders on a present value basis (the relevant discounting
of anticipated collections that will be distributable to Certificateholders to
be performed at the related Net Mortgage Rate in effect immediately prior to the
related Anticipated Repayment Date) than a refusal to waive the right to such
Additional Interest; provided further, that such waiver shall not be effective
prior to the tender of such prepayment in full and such Additional Interest
shall remain due if such tender does not occur. The Master Servicer (or, if the
Hyper-Amortization Loan is a Specially Serviced Mortgage Loan, the Special
Servicer) will have no liability to the Trust, the Certificateholders or any
other person so long as such determination is based on such criteria.
SECTION 3.21 Transfer of Servicing Between
Master Servicer and Special Servicer;
Record Keeping; Asset Status Report.
(a) Upon determining that a Servicing Transfer Event has
occurred with respect to any Mortgage Loan, the Master Servicer shall promptly
give notice thereof, and deliver the related Servicing File, to the Special
Servicer and shall use its best efforts to provide the Special Servicer with all
information, documents (or copies thereof) and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan and reasonably requested by the Special Servicer to enable it to
assume its functions hereunder with respect thereto without acting through a
Sub-Servicer. The Master Servicer shall use its best efforts to comply with the
preceding sentence within five Business Days of the occurrence of each related
Servicing Transfer Event. The Master Servicer shall deliver to each Class F,
Class G, Class H, Class J and Class K Certificateholders that shall have
requested a copy of any such notice a copy of the notice of such Servicing
Transfer Event provided by the Master Servicer to the Special Servicer pursuant
to this Section.
Upon determining that a Specially Serviced Mortgage Loan has
become a Corrected Mortgage Loan, the Special Servicer shall promptly give
notice thereof, and return the related Servicing File, to the Master Servicer
and upon giving such notice, and returning such Servicing File, to the Master
Servicer, the Special Servicer's obligation to service such Mortgage Loan, and
the Special Servicer's right to receive the Special Servicing Fee with respect
to such Mortgage Loan, shall terminate, and the obligations of the Master
Servicer to service and administer such Mortgage Loan shall resume.
Notwithstanding other provisions in this Agreement to the
contrary, the Master Servicer shall remain responsible for the accounting, data
collection, reporting and other basic Master Servicer administrative functions
with respect to Specially Serviced Mortgage Loans, provided that the Master
Servicer shall establish reasonable procedures as to the application of Special
Servicer receipts and tendered payments, and the Special Servicer shall have the
exclusive responsibility for and authority over all contacts (including billing
and collection) with and notices to Mortgagors and similar matters relating to
each Specially Serviced Mortgage Loan and the related Mortgaged Property.
Also notwithstanding anything herein to the contrary, in
connection with the transfer to the Special Servicer of the servicing of a
Cross-Collateralized Mortgage Loan as a result of a Servicing Transfer Event or
the re-assumption of servicing responsibilities by the Master Servicer with
respect to any such Mortgage Loan upon its becoming a Corrected Mortgage Loan,
the Master Servicer and the Special Servicer shall each transfer to the other,
as and when applicable, the servicing of all other Cross-Collateralized Mortgage
Loans constituting part of the same Group; provided that no Cross-Collateralized
Mortgage Loan may become a Corrected Mortgage Loan at any time that a continuing
Servicing Transfer Event exists with respect to another Cross-Collateralized
Mortgage Loan in the same Group.
(b) In servicing any Specially Serviced Mortgage Loans, the
Special Servicer shall provide to the Trustee the originals, and to the Master
Servicer copies, of documents contemplated by the definition of "Mortgage File"
and generated while such Mortgage Loan is a Specially Serviced Mortgage Loan,
for inclusion in the related Mortgage File (with a copy of each such original to
the Master Servicer), and copies of any additional related Mortgage Loan
information, including correspondence with the related Mortgagor generated while
such Mortgage Loan is a Specially Serviced Mortgage Loan.
(c) Notwithstanding anything in this Agreement to the
contrary, in the event that the Master Servicer and the Special Servicer are the
same Person, all notices, certificates, information, consents and documents
required to be given or delivered by the Master Servicer to the Special Servicer
or vice versa shall be deemed to be given or delivered, as the case may be,
without the necessity of any action on such Person's part.
(d) No later than thirty (30) days after a Servicing Transfer
Event for a Mortgage Loan, the Special Servicer shall deliver to each Rating
Agency, the Master Servicer, the Trustee and the Directing Certificateholder a
report (the "Asset Status Report") with respect to such Mortgage Loan and the
related Mortgaged Property. Such Asset Status Report shall set forth the
following information to the extent reasonably determinable:
(i) summary of the status of such Specially Serviced Mortgage
Loan and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental
considerations reasonably known to the Special Servicer (including
without limitation by reason of any Phase I Environmental Assessment
and any additional environmental testing contemplated by Section
3.09(c)), consistent with the Servicing Standard, that are applicable
to the exercise of remedies as aforesaid and to the enforcement of any
related guaranties or other collateral for the related Mortgage Loan
and whether outside legal counsel has been retained;
(iii) the most current rent roll and income or operating
statement available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such
Specially Serviced Mortgage Loan might be returned to performing
status and returned to the Master Servicer for regular servicing or
otherwise realized upon;
(v) the Appraised Value of the Mortgaged Property together
with the assumptions used in the calculation thereof; and
(vi) such other information as the Special Servicer deems
relevant in light of the Servicing Standards.
If within ten (10) Business Days of receiving an Asset Status
Report, the Directing Certificateholder does not disapprove such Asset Status
Report in writing, the Special Servicer shall implement the recommended action
as outlined in such Asset Status Report; provided, however, that the Special
Servicer may not take any action that is contrary to applicable law or the terms
of the applicable Mortgage Loan documents. If the Directing Certificateholder
disapproves such Asset Status Report, the Special Servicer will revise such
Asset Status Report and deliver to the Directing Certificateholder, the Rating
Agencies, the Trustee and the Master Servicer a new Asset Status Report as soon
as practicable, but no later than thirty (30) days after such disapproval. The
Special Servicer shall revise such Asset Status Report as described above in
this Section 3.21(d) until the Directing Certificateholder shall fail to
disapprove such revised Asset Status Report in writing within ten (10) Business
Days of receiving such revised Asset Status Report or until the Special Servicer
makes one of the determinations described below. The Special Servicer may, from
time to time, modify any Asset Status Report it has previously delivered and
implement such report, provided such report shall have been prepared, reviewed
and not rejected pursuant to the terms of this Section. Notwithstanding the
foregoing, the Special Servicer (i) shall, following the occurrence of an
extraordinary event with respect to the related Mortgaged Property, take any
action set forth in such Asset Status Report before the expiration of a ten (10)
Business Day period if the Special Servicer has reasonably determined that
failure to take such action would materially and adversely affect the interests
of the Certificateholders and it has made a reasonable effort to contact the
Directing Certificateholder and (ii) in any case, shall determine whether such
disapproval is not in the best interest of all the Certificateholders pursuant
to the Servicing Standard. Upon making such determination in clause (ii) of the
immediately preceding sentence, the Special Servicer may request a vote by all
Certificateholders, but shall in any event take the recommended action after
making such determination. To accomplish such vote, the Special Servicer shall
notify the Trustee of such request and deliver to the Trustee a proposed notice
to Certificateholders which shall include a copy of the Asset Status Report, and
the Trustee shall send such notice to all Certificateholders. If the majority of
such Certificateholders, as determined by Voting Rights, fail, within five (5)
days of the Trustee's sending such notice, to reject such Asset Status Report,
the Special Servicer shall implement the same; provided, however, that the
Special Servicer shall in any event take such action as it shall determine to be
in the best interest of all the Certificateholders pursuant to the Servicing
Standard. If the Asset Status Report is rejected by the Certificateholders, the
Special Servicer shall revise such Asset Status Report as described in this
Section 3.21(d). The Trustee shall be entitled to reimbursement from the Trust
Fund for the reasonable expenses of providing such notices.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standards and the related Asset Status Report. The
Special Servicer shall not take any action inconsistent with the related Asset
Status Report, unless such action would be required in order to act in
accordance with the Servicing Standards.
No direction of the Directing Certificateholder shall (A)
require or cause the Special Servicer to violate the terms of a Specially
Serviced Mortgage Loan, applicable law or any provision of this Agreement,
including the Special Servicer's obligation to act in accordance with the
Servicing Standards and to maintain the REMIC status of each REMIC, or (B)
result in the imposition of a "prohibited transaction" or "prohibited
contribution" tax under the REMIC Provisions, or (C) expose the Master Servicer,
the Special Servicer, the Depositor, the Mortgage Loan Seller, the Trust Fund,
the Trustee or their officers, directors, employees or agents to any claim, suit
or liability, or (D) materially expand the scope of the Special Servicer's or
the Master Servicer's responsibilities under this Agreement.
SECTION 3.22 Sub-Servicing Agreements.
(a) The Master Servicer and, with the consent of the
Depositor, the Special Servicer, may each enter into Sub-Servicing Agreements to
provide for the performance by third parties of any or all of its obligations
hereunder, provided that, in each case, the Sub-Servicing Agreement: (i) is not
inconsistent with this Agreement; (ii) expressly or effectively provides that if
the Master Servicer or Special Servicer, as the case may be, shall for any
reason no longer act in such capacity hereunder (including, without limitation,
by reason of an Event of Default), any successor to the Master Servicer or the
Special Servicer, as the case may be, hereunder (including the Trustee if the
Trustee has become such successor pursuant to Section 7.02) may thereupon either
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Master Servicer or Special Servicer, as the
case may be, under such agreement or, subject to the provisions of Section
3.22(d), terminate such rights and obligations, in either case without payment
of any fee except as set forth in Section 3.22(d); (iii) in the case of a
Sub-Servicing Agreement entered into by the Master Servicer, expressly or
effectively provides that such agreement shall be suspended with respect to any
Mortgage Loan serviced thereunder at the time such Mortgage Loan becomes a
Specially Serviced Mortgage Loan (but only until such time as such Mortgage Loan
becomes a Corrected Mortgage Loan) and, except as set forth in Section 3.22(d),
the Sub-Servicer shall not receive or accrue an entitlement to any sub-servicing
compensation in respect of a Specially Serviced Mortgage Loan or an REO Loan;
(iv) in the case of a Sub-Servicing Agreement entered into by the Special
Servicer, relates only to Specially Serviced Mortgage Loans or REO Properties
and expressly or effectively provides that such agreement shall terminate with
respect to any such Mortgage Loan that becomes a Corrected Mortgage Loan; and
(v) in the case of a Sub-Servicing Agreement entered into by the Master
Servicer, provides that the related Sub-Servicer shall comply with all
reasonable requests for additional information made by the Master Servicer and,
further, provides that the failure of the related Sub-Servicer to furnish the
Master Servicer on a timely basis with any required reports, statements or other
information, including without limitation, the reports referred to in Section
3.12, either (A) shall permit the Master Servicer to make necessary inquiries of
the related borrower directly or (B) shall (subject to a cure period not to
exceed 60 days) constitute an event of default thereunder for which the Master
Servicer may terminate such Sub-Servicer without payment of any termination fee
(it being understood that notwithstanding anything to the contrary in this
clause (v), the obligations of a Sub-Servicer in respect of the second sentence
of Section 3.12(b) hereof may be limited to the provision of reports as agreed
between the Master Servicer and such Sub-Servicer and response to reasonable
inquiries from the Master Servicer with respect thereto). References in this
Agreement to actions taken or to be taken by the Master Servicer or the Special
Servicer, as the case may be, include actions taken or to be taken by a
Sub-Servicer on behalf of the Master Servicer or the Special Servicer, as the
case may be; and, in connection therewith, all amounts advanced by any
Sub-Servicer to satisfy the obligations of the Master Servicer or the Special
Servicer, as the case may be, hereunder to make Advances shall be deemed to have
been advanced by the Master Servicer or the Special Servicer, as the case may
be, out of its own funds and, accordingly, such Advances shall be recoverable by
such Sub-Servicer in the same manner and out of the same funds as if such
Sub-Servicer were the Master Servicer or the Special Servicer, as the case may
be, and, for so long as they are outstanding, such Advances shall accrue
interest in accordance with Section 3.11(f) and/or Section 4.03(d), such
interest to be allocable between the Master Servicer or the Special Servicer, as
the case may be, and such Sub-Servicer as they may agree. For purposes of this
Agreement, the Master Servicer and the Special Servicer each shall be deemed to
have received any payment when a Sub-Servicer retained by it receives such
payment. The Master Servicer and the Special Servicer each shall notify the
other such party, the Trustee and the Depositor in writing promptly of the
appointment by it of any Sub-Servicer, and shall deliver to the Trustee copies
of all Sub-Servicing Agreements, and any amendments thereto and modifications
thereof, entered into by it promptly upon its execution and delivery of such
documents; provided that the foregoing requirements set forth in this sentence
shall not apply in the case of the Sub-Servicing Agreements in effect as of the
Closing Date that are listed on Schedule II hereto or in the case of the
Sub-Servicers thereunder.
(b) Each Sub-Servicer (i) shall be authorized to transact
business in the state or states in which the Mortgaged Properties for the
Mortgage Loans it is to service are situated, if and to the extent required by
applicable law, and (ii) to the extent subservicing multifamily loans, shall be
an approved conventional seller/servicer of multifamily mortgage loans for
Freddie Mac or Fannie Mae or a HUD-Approved Servicer.
(c) The Master Servicer and the Special Servicer, for the
benefit of the Trustee and the Certificateholders, shall (at no expense to the
Trustee, the Certificateholders or the Trust) each monitor the performance and
enforce the obligations of its Sub-Servicers under the related Sub-Servicing
Agreements. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Sub-Servicing Agreements in accordance
with their respective terms and the terms of this Agreement, and the pursuit of
other appropriate remedies, shall be in such form and carried out to such an
extent and at such time as the Master Servicer or the Special Servicer, as the
case may be, in its good faith business judgment, would require were it the
owner of the Mortgage Loans. Promptly upon becoming aware of a default under any
Sub-Servicing Agreement to which it is a party, the Master Servicer or the
Special Servicer, as the case may be, shall notify the other such party and the
Trustee, and each Class F, Class G, Class H, Class J and Class K
Certificateholder that shall have requested notice of any such default.
(d) With respect to the Sub-Servicing Agreements in effect as
of the Closing Date that are listed on Schedule II hereto, the initial Master
Servicer hereby agrees that it shall not, in its capacity as Master Servicer,
terminate any Sub-Servicer thereunder without cause. In the event of the
resignation, removal or other termination of the initial Master Servicer (or any
successor Master Servicer) hereunder for any reason, the successor to the
initial Master Servicer (or to such successor Master Servicer) shall elect, with
respect to any Sub-Servicing Agreement existing at the time of such termination
(i) to assume the rights and obligations of the predecessor Master Servicer
under such Sub-Servicing Agreement and continue the sub-servicing arrangements
thereunder on the same terms (including without limitation the obligation to pay
the same sub-servicing fee), (ii) to enter into a new Sub-Servicing Agreement
with such Sub-Servicer and on such terms as the new Master Servicer and such
Sub-Servicer shall mutually agree (it being understood that such Sub-Servicer is
under no obligation to accept any such new Sub-Servicing Agreement or to enter
into or continue negotiations with the new Master Servicer) or (iii) to
terminate such Sub-Servicing Agreement without cause, provided that no
Sub-Servicer may be terminated without cause unless it receives Sub-Servicer
Termination Compensation. For purposes hereof, a Sub-Servicer shall receive
"Sub-Servicer Termination Compensation" if any successor Master Servicer elects
to terminate such Sub-Servicer without cause, in which case either of the
following shall occur: (i) such successor Master Servicer shall pay to such
Sub-Servicer a fee (a "Sub-Servicer Termination Fee") in an amount equal to two
times the product of (A) the Primary Servicing Fee Rate in effect under such
Sub-Servicing Agreement at the time of such Sub-Servicer's termination and (B)
the then-current outstanding principal balance of the Mortgage Loans serviced by
such Sub-Servicer or (ii) such successor Master Servicer shall agree to pay such
Sub-Servicer an interest-only strip (the "Termination Strip") out of its related
Master Servicing Fees for each Mortgage Loan serviced by such Sub-Servicer at
the time of such Sub-Servicer's termination (such strip to be calculated in the
same manner as the related Master Servicing Fees, but at a per annum rate equal
to the applicable Primary Servicing Fee Rate minus 0.04%). Any subsequent
successor Master Servicer shall be obligated to pay any such Termination Strip
agreed to by a predecessor Master Servicer. Nothing in the foregoing provisions
of this Section 3.22(d) shall limit the ability of the initial or a successor
Master Servicer to terminate a Sub-Servicer at any time for cause; provided,
however, that the parties hereto understand and agree that the refusal or
failure of a Sub-Servicer to enter into or continue negotiations with a
successor Master Servicer concerning a new Sub-Servicing Agreement shall not
constitute cause for termination. It shall be the corporate obligation (not
reimbursable by the Trust or any of the other parties to this Agreement) of the
Person, who as successor Master Servicer, terminates any Sub-Servicer without
cause, and of its successors and assigns in such capacity (to the extent
contemplated by the second preceding sentence), to pay Sub-Servicer Termination
Compensation to such terminated Sub-Servicer. References in this Section 3.22(d)
to Master Servicer, successor Master Servicer or subsequent successor Master
Servicer shall mean the Trustee, if it is then Master Servicer, successor Master
Servicer or subsequent Master Servicer pursuant to the operation of Section
7.02.
(e) In the event the Trustee or its designee assumes the
rights and obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement, the Master Servicer or the Special Servicer, as the
case may be, at its expense shall, upon request of the Trustee, deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use its best efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
(f) Notwithstanding any Sub-Servicing Agreement, the Master
Servicer and the Special Servicer shall each remain obligated and liable to the
Trustee and the Certificateholders for the performance of its obligations and
duties under this Agreement in accordance with the provisions hereof to the same
extent and under the same terms and conditions as if it alone were servicing and
administering the Mortgage Loans for which it is responsible.
SECTION 3.23 Designation of Special Servicer by the Majority
Certificateholder of the Controlling Class.
The Majority Certificateholder of the Controlling Class may at
any time and from time to time replace any existing Special Servicer or any
Special Servicer that has resigned or otherwise ceased to serve as Special
Servicer. Such Majority Certificateholder shall so designate a Person to so
serve by the delivery to the Trustee of a written notice stating such
designation, subject to the approval of the Trustee, which approval shall not be
unreasonably withheld. The Trustee shall, promptly after receiving any such
notice, so notify the Rating Agencies. If the Trustee approves the designated
Person (based upon the servicing qualifications and financial condition of such
designated Person) as a replacement Special Servicer, which approval shall not
be unreasonably withheld, the designated Person shall become the Special
Servicer as of the date the Trustee shall have received: (i) written
confirmation from each Rating Agency stating that if the designated Person were
to serve as Special Servicer hereunder, none of the then-current ratings
assigned by such Rating Agency to the respective Classes of the Certificates
would be downgraded, qualified (if applicable) or withdrawn as a result thereof;
(ii) a written acceptance of all obligations of the Special Servicer under this
Agreement, executed by the designated Person; and (iii) an Opinion of Counsel
(at the expense of the Person designated to become the Special Servicer or at
the expense of the Majority Certificateholder that made the designation) to the
effect that the designation of such Person to serve as Special Servicer is in
compliance with this Section 3.23, that upon the execution and delivery of the
written acceptance referred to in the immediately preceding clause (ii), the
designated Person shall be bound by the terms of this Agreement and that this
Agreement shall be enforceable against the designated Person in accordance with
its terms. The existing Special Servicer shall be deemed to have resigned
simultaneously with such designated Person's becoming the Special Servicer
hereunder; provided, however, that (i) the terminated Special Servicer shall
continue to be entitled to receive all amounts accrued or owing to it under this
Agreement on or prior to the effective date of such resignation, whether in
respect of Servicing Advances or otherwise, (ii) if it was terminated without
cause, it shall be entitled to a portion of certain Workout Fees thereafter
received on the Corrected Mortgage Loans (but only if and to the extent
permitted by Section 3.11(c)), and (iii) it and its directors, officers,
employees and agents shall continue to be entitled to the benefits of Section
6.03, notwithstanding any such resignation. Such terminated Special Servicer
shall cooperate with the Trustee and the replacement Special Servicer in
effecting the termination of its responsibilities and rights hereunder,
including, without limitation, the transfer within two Business Days to the
replacement Special Servicer for administration by it of all cash amounts that
shall at the time be or should have been credited by the terminated Special
Servicer to the REO Account or delivered to the Master Servicer or that are
thereafter received by the terminated Special Servicer with respect to Specially
Serviced Mortgage Loans and REO Properties.
SECTION 3.24 Confidentiality.
The Master Servicer and the Special Servicer shall each keep
confidential and shall not disclose to any Person other than each other, the
Depositor, the Trustee and the Rating Agencies, without the related
Sub-Servicer's prior written consent, any information which it obtains in its
capacity as Master Servicer or Special Servicer with regard to the Sub-Servicer
(other than the name of the Sub-Servicer) or the Mortgage Loans or any related
Mortgagor including, without limitation, credit information with respect to any
such Mortgagor (collectively, "Confidential Information"), except (i) to the
extent that it is appropriate for the Master Servicer to do so in working with
legal counsel, auditors, taxing authorities or other governmental authorities,
(ii) to the extent required by this Agreement or any Sub-Servicing Agreement,
(iii) to the extent such information is otherwise publicly available, (iv) to
the extent such disclosure is required by law or (v) to the extent such
information is required to be delivered to third parties (including, without
limitation, property inspectors, tax service companies, insurance carriers, and
data systems vendors) in connection with the performance of the Master
Servicer's or the Special Servicer's obligations hereunder. For purposes of this
paragraph, the terms "Master Servicer" and "Special Servicer" shall mean the
divisions or departments of such corporate entities involved in providing
services hereunder and their respective officers, directors and employees, and
shall not include any other divisions or departments, or any Affiliates, of the
Master Servicer or Special Servicer (including without limitation any investor
in any of the Certificates and any such division, department or Affiliate
engaged in the origination of, or investment in, commercial or multifamily
mortgage loans), all of which shall be regarded as Persons not entitled to
Confidential Information. Notwithstanding anything in this Section 3.24 to the
contrary, the Master Servicer, and any Sub-Servicer with the prior written
permission of the Master Servicer, may disseminate general statistical
information relating to the Mortgage Loan portfolio being serviced (as to any
Sub-Servicer, limited to its own subserviced portfolio), so long as no
Mortgagors are identified.
SECTION 3.25 No Solicitation of Prepayments.
Neither the Master Servicer nor the Special Servicer shall
solicit or permit any Affiliate to solicit, either directly or indirectly,
prepayments from any Mortgagors under the Mortgage Loans; provided however, that
the foregoing restriction shall not be interpreted to prohibit such solicitation
by a division or department of, or an Affiliate of, the Master Servicer or the
Special Servicer if such solicitation occurs incidentally in the normal course
of business and such solicitation is not conducted, in whole or in part, (i) by
an individual engaged at any time in activities relating to the servicing of
Mortgage Loans or (ii) based upon or otherwise with the benefit of any
information obtained by or through the Master Servicer or Special Servicer or
from documentation relating to the Certificates, including without limitation
any listing of the Mortgage Loans or related Mortgagors or Mortgaged Properties.
Each Sub-Servicing Agreement shall contain a provision identical to the
foregoing with respect to the related Sub-Servicer.
SECTION 3.26 Certain Matters with Respect to Loans Permitting
Defeasance, Franchise Loans and Certain Loans Permitting Additional Debt.
(a) With respect to each Mortgage Loan as to which the Master
Servicer shall have the discretion pursuant to the terms thereof to require the
related Mortgagor to post defeasance collateral in lieu of making a permitted
prepayment, the Master Servicer shall so require defeasance, provided such
defeasance complies with Treasury Regulations Section 1.860G-2(a)(8).
(b) The Master Servicer shall enforce the provisions of the
related Mortgage Loan documents that require, as a condition to the exercise by
the Mortgagor of any defeasance rights, that the Mortgagor pay any costs and
expenses associated with such exercise.
(c) To the extent that the terms of a Mortgage permit
defeasance, the Master Servicer shall require the related Mortgagor to deliver a
certification from the Mortgagor's independent certified public accountants as
to the sufficiency of the related treasury securities, and provide a copy of
such certification to each Rating Agency.
(d) To the extent that the terms of Mortgage Loan documents
permit defeasance, the Master Servicer shall not approve the form and substance
of any required legal opinion(s) in connection with such defeasance unless (i)
in the case of S&P and Moody's, each such Rating Agency shall have confirmed to
it in writing that such defeasance will not result in the withdrawal, downgrade
or qualification (if applicable) of the rating of any Class of Certificates and
(ii) in the case of DCR, the requirements of the following paragraph (e) are
satisfied.
(e) With respect to each Mortgage Loan that provides for
defeasance, to the extent permitted by the terms of such Mortgage Loan, the
Master Servicer shall require the related Mortgagor to (i) provide replacement
collateral consisting of U.S. government securities within the meaning of
Treasury Regulations Section 1.860G-2(a)(8)(i) in an amount sufficient to make
all scheduled payments under the Mortgage Note when due, (ii) deliver a
certification from an independent certified public accounting firm certifying
that the replacement collateral is sufficient to make such payments, (iii)
designate a Single-Purpose Entity (if the borrower no longer complies) to assume
the Mortgage Loan and own the collateral and (iv) provide an opinion from
counsel that the Trustee has a perfected security interest in the new
collateral. If the terms of the Mortgage Loan permit the Master Servicer to
impose the foregoing requirements, a confirmation from DCR is not required. If,
however, the terms of the Mortgage Loan do not permit the Master Servicer to
impose such requirements, the Master Servicer shall obtain a confirmation from
DCR that the certifications and legal opinions that are required by the Mortgage
Loan, as delivered by the related borrower, will not result in a downgrade or
withdrawal of the ratings assigned by DCR to any Class of Certificates.
(f) To the extent that the terms of a Mortgage relating to a
hotel or restaurant franchise permit the lender thereunder the right to consent
to the change of the franchise association (or "flag") of the related hotel or
restaurant, as the case may be, and subject to the Servicing Standard, the
Master Servicer shall not so consent unless each Rating Agency shall have
confirmed to it in writing that such change will not result in the downgrade,
qualification (if applicable) or withdrawal of the rating of any Class of
Certificates, subject to paragraph (k) below.
(g) To the extent that the terms of Mortgage Loan documents
permit the related Mortgagor, subsequent to the Closing Date, to incur
additional debt secured by the Mortgaged Property and condition such incurrence
of additional debt on lender's consent or the execution of a standstill
agreement in form and substance satisfactory to the lender and subject to the
Servicing Standard, the Master Servicer shall not consent or so approve the form
and substance of such standstill agreement unless each Rating Agency shall have
confirmed to it in writing that the form and substance of such standstill
agreement is satisfactory to such Rating Agency and that the execution and
delivery of such a standstill agreement with respect to such additional debt
will not result in the downgrade, withdrawal or qualification (if applicable) of
any Class of Certificates subject to paragraph (k) below.
(h) With respect to the Mortgage Loan secured by the Mortgaged
Property known as "Eagle Trace", the Master Servicer shall not approve the
amount or form of the letter of credit required to be obtained by the Mortgagor
in respect thereof unless each Rating Agency shall have confirmed to it in
writing that such letter of credit, if approved by the Master Servicer, would
not result in the downgrade, qualification (if applicable) or withdrawal of the
rating of any Class of Certificates.
(i) To the extent that (i) the outstanding principal balance
of a Mortgage Loan is $20,000,000 or more, or constitutes 2% or more of the then
current principal balance of the Mortgage Pool, and (ii) the terms of the
related Mortgage Loan documents require the consent of the lender for the
transfer of an Over 49% Interest in the related borrower or in any special
purpose entity owning an equity interest in such borrower, or any Over 49%
Interest in any entity owning an Over 49% Interest in any borrower or in any
special purpose entity owning an equity interest in such borrower, the Master
Servicer shall not so consent to such a transfer unless each Rating Agency shall
have confirmed to it in writing that such transfer, it consummated, would not
result in the downgrade, qualification (if applicable) or withdrawal of the
rating of any Class of Certificates, subject to paragraph (k) below. For
purposes of this clause (i), an "Over 49% Interest" in any entity refers to any
interest representing over 49% of the equity ownership interests in such entity.
(j) To the extent that (i) the outstanding principal balance
of a Mortgage Loan is $20,000,000 or more, or constitutes 2% or more of the then
current principal balance of the Mortgage Pool, and (ii) the terms of the
related Mortgage Loan documents require the consent of the lender in order for
the related Mortgagor to change the manager of the related Mortgaged Property,
the Master Servicer shall not so consent to such a change in management unless
each Rating Agency shall have confirmed to it in writing that such a change in
management, if effected, would not result in the withdrawal, downgrade or
qualification (if applicable) of the rating of any Class of Certificate, subject
to paragraph (k) below.
(k) Each transfer, assumption or encumbrance or hotel change
of franchise association requiring the consent of the mortgagee with respect to
a Mortgage Loan having a current outstanding principal balance constituting 2%
or more of the then current principal balance of the Mortgage Pool ("DCR Review
Threshold") will be subject to a confirmation from DCR that granting such
consent will not result in a downgrade or withdrawal of the rating on any Class
of Certificates. In connection with the request for such consent, the Master
Servicer shall prepare and deliver to DCR a memorandum outlining its analysis
and recommendation in accordance with the Servicing Standard together with
copies of all relevant documentation. The Master Servicer shall also prepare and
provide DCR with such memorandum and documentation for all transfer, assumption
and encumbrance consents granted for Mortgage Loans below the DCR Review
Threshold, but for which the Master Servicer's decision will be sufficient and
no confirmation from DCR will be required.
SECTION 3.27 Participant Retained Interest.
(a) Subject to the provisions of this Section 3.27, SouthTrust
Capital Funding Corporation (together with its successors and assigns with
respect to the Participant Retained Interest described in this Section 3.27, the
"Participant") shall retain an interest in the monthly interest payments on the
Summit Mortgage Loan (the "Partially Retained Loan") in an amount equal to
0.737% per annum from the Mortgage Rate (without regard to the proviso in the
definition thereof) (such amount for the Partially Retained Loan, the
"Participant Retained Interest"). The Participant Retained Interest in the
Partially Retained Loan, to the extent of any interest (net of applicable
Servicing Fees) actually received, shall be paid by the Master Servicer or
Special Servicer, as applicable (or, if the Participant is the Sub-Servicer for
such Mortgage Loan, such Sub-Servicer may retain such amounts), to the
Participant from the monthly payments allocable to interest (net of applicable
Servicing Fees) received on such Partially Retained Loan on the Distribution
Date with respect thereto; provided, however, that no amounts shall accrue or be
paid to the Participant if such Partially Retained Loan is an REO Loan; provided
further, however, that in the event that the Mortgaged Property is liquidated
and the Liquidation Proceeds (net of Liquidation Expenses) are sufficient for
the payment of amounts in respect of interest on the Partially Retained Loan,
the Participant shall be entitled to receive from such interest its pro-rata
share of any such interest relative to the Non-Retained Portion (as defined
below).
(b) The Master Servicer and the Special Servicer (and their
respective Sub-Servicers) shall have the exclusive right to collect all amounts
due, owing or paid in connection with the Partially Retained Loan, condemnation
proceeds, insurance proceeds and all amounts realized upon the sale, foreclosure
or enforcement of the Partially Retained Loan.
(c) The Participant shall not initiate any judicial action or
other proceeding against the Mortgagor with respect to the Partially Retained
Loan or take any equivalent or similar action against the Mortgagor or any
guarantor or against or affecting any collateral security for such Partially
Retained Loan. If the Participant shall receive any payments or other funds or
property in connection with or on account of the Partially Retained Loan
(whether or not voluntary) other than from the Master Servicer or Special
Servicer, the Participant shall remit to the Master Servicer or Special
Servicer, as appropriate, all such receipts within one Business Day of its
receipt. If all or part of any payments on the Partially Retained Loan to the
Master Servicer or Special Servicer, as applicable, is rescinded or must
otherwise be returned for any reason, then upon notice from the Master Servicer
or Special Servicer, the Participant shall immediately pay the Master Servicer
or Special Servicer, as applicable, an amount equal to the entire amount of the
portion previously paid to the Participant from or on account of the amount
which was rescinded or which must be so returned by the Master Servicer or
Special Servicer, as applicable. The Participant shall also pay to the Master
Servicer or Special Servicer, as applicable, its allocable share (based on the
amount the Participant is required to pay under the provisions of the preceding
sentence) of any interest which the Master Servicer or Special Servicer, as
applicable, is required to pay on such recoveries.
(d) The Participant irrevocably appoints and authorizes the
Master Servicer and Special Servicer, as independent contractors acting on
behalf of the Participant and without notice to or the specific consent of the
Participant to do all or any of the following, all in the sole discretion of the
Master Servicer or the Special Servicer, as applicable: (i) negotiate,
administer, control, manage and service the Partially Retained Loan; (ii) give
consents, approval or waivers in connection with any Mortgage Loan documents for
the Partially Retained Loan; (iii) agree to any amendments, modifications,
extensions, releases or terminations of any such Mortgage Loan document
(including taking any action permitted under Section 3.20); (iv) take or refrain
from taking any action and make any determination provided for herein or in any
such Mortgage Loan document; (v) acquire additional security for the Partially
Retained Loan; (vi) enforce or refrain from enforcing any of such Mortgage Loan
documents; (vii) make all decisions under such Mortgage Loan documents in
connection with the day-to-day administration of the Partially Retained Loans,
inspections, and other administration and servicing matters; (viii) collect and
receive from the Mortgagor or any other persons all amounts on such Partially
Retained Loan; (ix) take any action with respect to any REO Property; (x)
exercise, in any case commenced against the related Mortgagor on any principal
therein under Chapter 11 of the Bankruptcy Code or any similar provision thereof
or any similar federal or state statute, all voting rights and any other powers
of the mortgagee under the Partially Retained Loan; (xi) exercise all such
powers as are incidental to any of the foregoing powers and authorities; and
(xii) exercise all powers, rights and remedies, and take all actions, with
respect to the Partially Retained Loan, provided that the Master Servicer and
Special Servicer shall act under this Section on behalf of the Participant under
the same Servicing Standard and other provisions of this Agreement generally
applicable to the servicing of Mortgage Loans; and provided further that
notwithstanding anything hereinabove to the contrary, neither the Master
Servicer nor the Special Servicer may modify the Partially Retained Loan in any
manner so as to eliminate or reduce the Participant Retained Interest available
from payments with respect to the Partially Retained Loan, except that if the
Partially Retained Loan is a Specially Serviced Mortgage Loan for a reason other
than those stated in paragraphs (c) or (d) of the definition thereof, then (i)
if interest or principal is forgiven on the Partially Retained Loan or interest
is recategorized as principal on the Partially Retained Loan, then the
Participant shall no longer be entitled to the Participant Retained Interest
which would have otherwise related to such forgiven principal or interest or
recategorized interest (but, with respect to a recategorization of interest, the
Participant would be entitled to receive the Partially Retained Interest on the
increased principal balance that results from such recategorization on a going
forward basis); (ii) if any component of the Mortgage Rate on the Partially
Retained Loan is reduced, then all other components of the Mortgage Rate shall
be reduced pro rata by the ratio of the related reduced amount to the related
original amount of each such component; and (iii) if the accrual of interest on
the Partially Retained Loan is abated, then the Participant shall no longer be
entitled to the Participant Retained Interest which would have accrued to its
benefit if interest had not been abated. "Non-Retained Portion" means that
portion of total interest on the Partially Retained Loan other than the
Participant Interest. Any action taken under this clause (d) shall be binding
upon the Participant as fully as if the Participant had specifically consented
thereto.
(e) Any Assumed Monthly Payments, P&I Advances and Workout
Fees shall be determined without reference to the amounts payable to the
Participant under this Section 3.27. The Participant shall not be entitled to
any portion of any Advances hereunder.
(f) The Master Servicer or the Special Servicer, as the case
may be, shall remit the Participant Retained Interest to the Participant at such
address as the Participant may specify from time to time in writing by wire
transfer not later than the related Master Servicer Remittance Date. The Master
Servicer and the Special Servicer shall, upon request of the Participant,
provide to the Participant such information with respect to the Partially
Retained Loan as is reasonably available to the Master Servicer or the Special
Servicer, including information generally comparable to that made available for
the Mortgage Loans generally under this Agreement.
(g) The Master Servicer's and Special Servicer's relationship
to the Participant shall be that of an independent contractor, and neither the
Master Servicer nor Special Servicer (i) is an agent, partner, employee or joint
venturer of the Participant, or (ii) shall have any fiduciary obligations to the
Participant.
(h) The Participant may transfer its interest in the
Participant Retained Interest of the Partially Retained Loan by notice to the
Master Servicer and Special Servicer, whereupon the designated assignee shall be
treated as the Participant hereunder. The Master Servicer and Special Servicer
shall be entitled to rely on this Agreement and any such notice as to the
identity of the Participant, and shall not be responsible for acknowledging any
transfer of which it does not have notice. Any assignee of the Participant must
acknowledge, in writing, to the Master Servicer and the Special Servicer that it
is bound by the provisions of this Section 3.27 to be effective.
(i) The Participant acknowledges and agrees that it shall have
no recourse to the Trust Fund for any losses incurred by it as a result of the
actions contemplated in Section 3.27.
SECTION 3.28 Year 2000 Compliance.
Each of the Master Servicer and the Special Servicer covenants
that by August 31, 1999, any custom-made software or hardware designed or
purchased or licensed by it and used by it in the course of the operation or
management of, or the compiling, reporting or generation of, data required by
this Agreement will not contain any deficiency (x) in the ability of such
software or hardware to identify correctly or perform calculations or other
processing with respect to dates after December 31, 1999, or (y) that would
cause such software or hardware to be fit no longer for the purpose for which it
was intended by reason of the changing of the date from 1999 to 2000.
<PAGE>
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
SECTION 4.01 Distributions on the Certificates.
(a) (i) On each Distribution Date, amounts held in the
Distribution Account shall be withdrawn (to the extent of the Available
Distribution Amount, the "REMIC I Distribution Amount") in the case of all
Classes of REMIC I Regular Interests and distributed on the REMIC I Regular
Interests as set forth herein. Thereafter, such amounts shall be considered to
be held in the REMIC II Distribution Account until distributed to the
Certificateholders.
(ii) Principal amounts, rates of interest, reimbursement of
Realized Losses and Additional Trust Fund Expenses and timing of
distributions on each REMIC I Regular Interest will be identical to
such amounts, rates, reimbursements and timing on the related
Corresponding Certificates, except that, solely for this purpose, all
calculations of interest with respect to the Corresponding REMIC I
Regular Interests shall be made as though the Class A-1, Class A-2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J
and Class K Certificate Pass-Through Rates were equal to the Weighted
Average Adjusted Net Mortgage Rate and as though the Class X Notional
Amount was zero at all times, such that the rates of interest and
timing of interest distributions on each Corresponding REMIC I Regular
Interest represent the aggregate of the corresponding amounts on each
Corresponding Certificate and its related Component of the Class X
Certificates; provided that interest shall be distributed on such REMIC
I Regular Interest only to the extent actually distributable on such
related Certificate or related Component.
(iii) Any amount that remains in the Distribution Account on
each Distribution Date after distribution of the REMIC I Distribution
Amount and Prepayment Premiums allocable to the REMIC I Regular
Interests pursuant to Section 4.01(c)(ii) shall be distributed to the
Holders of the Class R-I Certificates (but only to the extent of the
Available Distribution Amount for such Distribution Date remaining in
the Distribution Account, if any).
(b) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Trustee shall transfer the
REMIC I Distribution Amount from the Distribution Account to the REMIC II
Distribution Account in the amounts set forth in Section 4.01(a)(i) with respect
to each Class of REMIC I Regular Interest, and immediately thereafter, shall
make distributions thereof from the REMIC II Distribution Account in the order
of priority set forth in clauses (i) through (xxxi) below, satisfying in full,
to the extent required and possible, each priority before making any
distribution with respect to any succeeding priority.
(i) to distributions of interest to the Holders of the Class
A-1 Certificates, the Holders of the Class A-2 Certificates and the
Holders of the Class X Certificates, pro rata in accordance with the
respective amounts of Distributable Certificate Interest payable in
respect of such Classes of Certificates described in this clause (i),
in an amount equal to all Distributable Certificate Interest in respect
of each such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(ii) to distributions of principal, first to the Holders of
the Class A-1 Certificates and second to the Holders of the Class A-2
Certificates, in each case, in an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(iii) to distributions to the Holders of the Class A-1
Certificates and the Holders of the Class A-2 Certificates, pro rata in
accordance with the respective amounts of previously allocated Realized
Losses and Additional Trust Fund Expenses reimbursable in respect of
such Classes of Certificates described in this clause (iii), in an
amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated
to the Class Principal Balances of each such Class of Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(iv) to distributions of interest to the Holders of the Class
B Certificates in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(v) if the Class Principal Balances of the Class A-1 and Class
A-2 Certificates have been reduced to zero, to distributions of
principal to the Holders of the Class B Certificates, in an amount (not
to exceed the Class Principal Balance of the Class B Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire remaining Principal Distribution Amount for such Distribution
Date;
(vi) to distributions to the Holders of the Class B
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class B
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(vii) to distributions of interest to the Holders of the Class
C Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(viii) if the Class Principal Balances of the Class A-1, Class
A-2 and Class B Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class C Certificates,
in an amount (not to exceed the Class Principal Balance of the Class C
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(ix) to distributions to the Holders of the Class C
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class C
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(x) to distributions of interest to the Holders of the Class D
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xi) if the Class Principal Balances of the Class A-1, Class
A-2, Class B and Class C Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class D Certificates,
in an amount (not to exceed the Class Principal Balance of the Class D
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xii) to distributions to the Holders of the Class D
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class D
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xiii) to distributions of interest to the Holders of the
Class E Certificates, in an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xiv) if the Class Principal Balances of the Class A-1, Class
A-2, Class B, Class C and Class D Certificates have been reduced to
zero, to distributions of principal to the Holders of the Class E
Certificates, in an amount (not to exceed the Class Principal Balance
of the Class E Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xv) to distributions to the Holders of the Class E
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class E
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xvi) to distributions of interest to the Holders of the Class
F Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xvii) if the Class Principal Balances of the Class A-1, Class
A-2, Class B, Class C, Class D and Class E Certificates have been
reduced to zero, to distributions of principal to the Holders of the
Class F Certificates, in an amount (not to exceed the Class Principal
Balance of the Class F Certificates outstanding immediately prior to
such Distribution Date) equal to the entire remaining Principal
Distribution Amount for such Distribution Date;
(xviii) to distributions to the Holders of the Class F
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class F
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xix) to distributions of interest to the Holders of the Class
G Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xx) if the Class Principal Balances of the Class A-1, Class
A-2, Class B, Class C, Class D, Class E and Class F Certificates have
been reduced to zero, to distributions of principal to the Holders of
the Class G Certificates, in an amount (not to exceed the Class
Principal Balance of the Class G Certificates outstanding immediately
prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xxi) to distributions to the Holders of the Class G
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class G
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xxii) to distributions of interest to the Holders of the
Class H Certificates, in an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxiii) if the Class Principal Balances of the Class A-1,
Class A-2, Class B, Class C, Class D, Class E, Class F and Class G
Certificates have been reduced to zero, to distributions of principal
to the Holders of the Class H Certificates, in an amount (not to exceed
the Class Principal Balance of the Class H Certificates outstanding
immediately prior to such Distribution Date) equal to the entire
remaining Principal Distribution Amount for such Distribution Date;
(xxiv) to distributions to the Holders of the Class H
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class H
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xxv) to distributions of interest to the Holders of the Class
J Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates;
(xxvi) if the Class Principal Balances of the Class A-1, Class
A-2, Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates have been reduced to zero, to distributions of principal
to the Holders of the Class J Certificates, in an amount (not to exceed
the Class Principal Balance of the Class J Certificates outstanding
immediately prior to such Distribution Date) equal to the entire
remaining Principal Distribution Amount for such Distribution Date;
(xxvii) to distributions to the Holders of the Class J
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class J
Certificates and that remain unreimbursed immediately prior to such
Distribution Date;
(xxviii) to distributions of interest to the Holders of the
Class K Certificates, in an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxix) if the Class Principal Balances of the Class A-1, Class
A-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H and
Class J Certificates have been reduced to zero, to distributions of
principal to the Holders of the Class K Certificates, in an amount (not
to exceed the Class Principal Balance of the Class K Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire remaining Principal Distribution Amount for such Distribution
Date;
(xxx) to distributions to the Holders of the Class K
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, that were
previously allocated to the Class Principal Balance of the Class K
Certificates and that remain unreimbursed immediately prior to such
Distribution Date; and
(xxxi) to distributions to the Holders of the Class R-II
Certificates, in an amount equal to the balance, if any, of the
Available Distribution Amount for such Distribution Date remaining
after the distributions to be made on such Distribution Date pursuant
to clauses (i) through (xxx) above;
provided that, on each Distribution Date coinciding with or following the Senior
Principal Distribution Cross-Over Date, and in any event on the Final
Distribution Date, the payments of principal to be made pursuant to clause (ii)
above, will be so made to the Holders of the respective Classes of Class A
Certificates, subject to available funds, up to an amount equal to, and pro rata
as among such Classes in accordance with, the respective then outstanding Class
Principal Balances of such Classes of Certificates, and without regard to the
Principal Distribution Amount for such date; and provided, further, that, on the
Final Distribution Date, the payments of principal to be made pursuant to any of
clauses (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii), (xxvi) and (xxix) above
with respect to any Class of Sequential Pay Certificates, will be so made to the
Holders thereof, subject to available funds, up to an amount equal to the entire
then outstanding Class Principal Balance of such Class of Certificates, and
without regard to the Principal Distribution Amount for such date. References to
"remaining Principal Distribution Amount" in clause (ii) above, in connection
with payments of principal to be made to the Holders of any Class of Class A
Certificates, shall be to the Principal Distribution Amount for such
Distribution Date, net of any distributions of principal made in respect thereof
to the Holders of each other Class of Class A Certificates, if any, that
pursuant to clause (ii) above has an earlier right to payment with respect
thereto. References to "remaining Principal Distribution Amount" in any of
clauses (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii), (xxvi) and (xxix)
above, in connection with the payments of principal to be made to the Holders of
any Class of Sequential Pay Certificates, shall be to the Principal Distribution
Amount for such Distribution Date, net of any payments of principal made in
respect thereof to the Holders of each other Class of Sequential Pay
Certificates that has a higher Payment Priority.
(c) (i) Any Prepayment Premiums (whether described in the
related Mortgage Loan documents as a fixed prepayment premium or a
yield maintenance amount) actually collected with respect to a Mortgage
Loan or REO Loan during any particular Collection Period will be
distributed on the related Distribution Date as follows:
(A) first, to the Holders of the respective Classes of the
Class A, Class B, Class C, Class D and Class E
Certificates then entitled to distributions of
principal on such Distribution Date, up to an amount
equal to the corresponding Prepayment Premium Amount
(as defined below) for each such Class of Certificates,
pro rata in accordance with their respective
entitlements; and
(B) then, to the extent of any portion of such Prepayment
Premium remaining following the distributions described
in the preceding clause (A), to the Holders of the
Class X Certificates.
The "Prepayment Premium Amount" for each Distribution Date
shall mean, with respect to any Class A, Class B, Class C, Class D or
Class E Certificate as to which any payment of principal is to be
applied on such Distribution Date in reduction of such Class's Class
Principal Balance, an amount equal to the product of (a) the amount of
such Prepayment Premium and (b) the applicable Discount Rate Fraction
for such Class of Certificates (which in no event may be greater than
one).
The Prepayment Premium Amount for the Class F, Class G, Class
H, Class J and Class K Certificates, and for any Class of Sequential
Pay Certificates that is not receiving a distribution of principal, is
zero.
For purposes of computing the Prepayment Premium Amount for
any Class of REMIC II Regular Certificates for any Distribution Date,
the following definitions shall apply:
The "Discount Rate Fraction" for any Class A, Class B, Class
C, Class D or Class E Certificate shall be equal to the following:
P-R
-----
M-R
where P equals the Pass-Through Rate for the applicable Class
of Certificates, R equals the Reinvestment Yield for the applicable
Class of Certificates and M equals the Mortgage Rate of the prepaid
Mortgage Loan in effect at the time of prepayment.
The "Assumed Final Distribution Date" for each Class of REMIC
II Regular Certificates is the Distribution Date in the month set forth
below with respect to such Class.
Class Month of Assumed Final Distribution Date
----- ----------------------------------------
Class A-1 November 20, 2007
Class A-2 November 20, 2008
Class X December 20, 2013
Class B November 20, 2008
Class C December 20, 2008
Class D January 20, 2009
Class E January 20, 2009
Class F January 20, 2009
Class G January 20, 2009
Class H February 20, 2009
Class J November 20, 2010
Class K December 20, 2013
The "Reinvestment Yield" for any Class of REMIC II Regular
Certificates and any Distribution Date shall be a rate determined by
the Trustee, in good faith, equal to the average yield for "This Week"
as most recently reported by the Federal Reserve Board in Federal
Reserve Statistical Release H.15 (519) for U.S. Treasury securities
with a maturity coterminous with the Assumed Final Distribution Date
for such Class. If there is no U.S. Treasury security listed with a
maturity coterminous with the Assumed Final Distribution Date for such
Class, then the Reinvestment Yield shall be a rate determined by the
Trustee, in good faith, equal to the interpolated yield to maturity of
U.S. Treasury securities with maturities next longer and shorter than
such remaining term to maturity (such interpolated yield to be rounded
to the nearest whole multiple of 1/100 of 1% per annum, if the
interpolated yield is not such a multiple). In the event the yields of
U.S. Treasury securities are no longer published in Federal Reserve
Statistical Release H.15(519), the Trustee shall select a comparable
publication to determine the Reinvestment Yield.
(ii) All distributions of Prepayment Premiums made in respect
of the respective Classes of REMIC II Regular Certificates on each
Distribution Date pursuant to Section 4.01(c)(i) shall first be
distributed from REMIC I to REMIC II in respect of the REMIC I Regular
Interests, pro rata based upon the amount of principal distributed in
respect of each Class of REMIC I Regular Interest for such
Distribution Date pursuant to Section 4.01(a)(i) above.
(d) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise provided below, all such distributions with respect to each Class of
Certificates on each Distribution Date shall be made to the Certificateholders
of the respective Class of record at the close of business on the related Record
Date and shall be made by wire transfer of immediately available funds to the
account of any such Certificateholder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five Business Days
prior to the related Record Date (which wiring instructions may be in the form
of a standing order applicable to all subsequent Distribution Dates), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. The final distribution on each Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Certificate)
will be made in like manner, but only upon presentation and surrender of such
Certificate at the Corporate Trust Office or such other location specified in
the notice to Certificateholders of such final distribution. Any distribution
that is to be made with respect to a Certificate in reimbursement of a Realized
Loss or Additional Trust Fund Expense previously allocated thereto, which
reimbursement is to occur after the date on which such Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Certificateholder that surrendered such Certificate
as such address last appeared in the Certificate Registrar or to any other
address of which the Trustee was subsequently notified in writing.
(e) Each distribution with respect to a Book-Entry Certificate
shall be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor, the Master Servicer, the Special Servicer
or the REMIC Administrator shall have any responsibility therefor except as
otherwise provided by this Agreement or applicable law.
(f) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of their Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates in respect of amounts properly
previously distributed on the Certificates. Distributions in reimbursement of
Realized Losses and Additional Trust Fund Expenses previously allocated to a
Class of Certificates shall not constitute distributions of principal and shall
not result in a reduction of the related Class Principal Balance.
(g) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to such
Class of Certificates) will be made on the next Distribution Date, the Trustee
shall, as soon as practicable in the month in which such Distribution Date
occurs, mail to each Holder of such Class of Certificates as of the date of
mailing a notice to the effect that:
(i) the Trustee expects that the final distribution with
respect to such Class of Certificates will be made on such Distribution
Date but only upon presentation and surrender of such Certificates at
the Corporate Trust Office or such other location therein specified,
and
(ii) no interest shall accrue on such Certificates from and
after such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(g). If all of the Certificates
shall not have been surrendered for cancellation by the second anniversary of
the delivery of the second notice, the Trustee shall distribute to the Class
R-II Certificateholders all unclaimed funds and other assets which remain
subject hereto.
(h) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event the
Trustee does withhold any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall indicate the amount withheld to such
Certificateholders. Such amounts shall be deemed to have been distributed to
such Certificateholders for all purposes of this Agreement.
SECTION 4.02 Statements to Certificateholders; Certain Reports
by the Master Servicer and the Special Servicer.
(a) On each Distribution Date, the Trustee shall provide or
make available, either in electronic format or by first-class mail to each
Holder (and, if it shall have certified to the Trustee as to its Ownership
Interest in a Class of Book-Entry Certificates, each Certificate Owner) of the
REMIC II Regular Certificates and to the Rating Agencies a statement (a
"Distribution Date Statement"), substantially in the form contemplated on pages
C-1 through C-17 of the Prospectus Supplement, as to the distributions made on
such Distribution Date setting forth:
(i) the amount of the distribution, if any, on such
Distribution Date to the Holders of each Class of REMIC II Regular
Certificates in reduction of the Class Principal Balance thereof;
(ii) the amount of the distribution, if any, on such
Distribution Date to the Holders of each Class of REMIC II Regular
Certificates allocable to Distributable Certificate Interest and the
amount of the distribution, if any, on such Distribution Date to the
Holders of each Class of REMIC II Regular Certificates allocable to
Prepayment Premiums;
(iii) the Available Distribution Amount for such Distribution
Date;
(iv) the aggregate amount of P&I Advances made in respect of
the immediately preceding Distribution Date;
(v) the aggregate Stated Principal Balance of the Mortgage
Pool outstanding immediately before and immediately after such
Distribution Date;
(vi) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Pool as of the end of the Collection Period for the
immediately preceding Distribution Date;
(vii) as of the Determination Date for the related
Distribution Date, the number, aggregate unpaid principal balance and
specific identification (by loan number) of Mortgage Loans (A)
delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90 or
more days, and (D) current but specially serviced or in foreclosure but
not a REO Property;
(viii) with respect to any REO Property included in the Trust
Fund as of the end of the Collection Period for such Distribution Date,
the principal balance of the Mortgage Loan as of the date such Mortgage
Loan became delinquent;
(ix) the Accrued Certificate Interest and Distributable
Certificate Interest in respect of each Class of REMIC II Regular
Certificates for such Distribution Date;
(x) the aggregate amount of Distributable Certificate Interest
payable in respect of each Class of REMIC II Regular Certificates on
such Distribution Date, including, without limitation, any
Distributable Certificate Interest remaining unpaid from prior
Distribution Dates;
(xi) any unpaid Distributable Certificate Interest in respect
of each Class of REMIC II Regular Certificates after giving effect to
the distributions made on such Distribution Date;
(xii) the Pass-Through Rate for each Class of REMIC II Regular
Certificates for such Distribution Date;
(xiii) the Principal Distribution Amount for such Distribution
Date, separately identifying the respective components of such amount;
(xiv) the aggregate of all Realized Losses incurred during the
related Collection Period and all Additional Trust Fund Expenses
incurred during the related Collection Period;
(xv) the Certificate Balance or Notional Amount, as the case
may be, of each Class of REMIC II Regular Certificates outstanding
immediately before and immediately after such Distribution Date,
separately identifying any reduction therein due to the allocation of
Realized Losses and Additional Trust Fund Expenses on such Distribution
Date;
(xvi) the Certificate Factor for each Class of REMIC II
Regular Certificates immediately following such Distribution Date;
(xvii) the aggregate amount of servicing fees paid to the
Master Servicer and the Special Servicer, collectively and separately,
during the related Collection Period; and
(xviii) a brief description of any material, waiver,
modification or amendment of any Mortgage Loan entered into by the
Master Servicer or Special Servicer pursuant to Section 3.20 during the
related Collection Period.
Any item of information disclosed to the Trustee by the Master
Servicer pursuant to Section 3.19(a) since the preceding Distribution Date (or,
in the case of the initial Distribution Date, since the Closing Date) shall be
made available with the Distribution Date Statement.
In the case of information furnished pursuant to clauses (i) and
(ii) above, the amounts shall be expressed as a dollar amount in the aggregate
for all Certificates of each applicable Class and per Single Certificate. Except
with respect to the Certificate Factor (required to be reported by clause (xvi)
above), financial information reported by the Trustee to the Certificateholders
pursuant to this Section 4.02 shall be expressed as a dollar amount rounded to
the nearest whole cent. Absent actual knowledge of an error therein, the Trustee
shall have no obligation to recompute, recalculate or verify any information
provided to it by the Master Servicer or Special Servicer. The calculations by
the Trustee contemplated by this Section 4.02 shall, in the absence of manifest
error, be presumptively deemed to be correct for all purposes hereunder.
The Trustee shall be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Distribution Date Statement and may affix
thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party hereto).
On each Distribution Date, the Trustee shall also provide or make
available, either in electronic format or by first-class mail, to such
Certificateholders and Certificate Owners and to the Rating Agencies, a report
(based on information received from the Master Servicer and Special Servicer)
containing, as and to the extent received from the Master Servicer and Special
Servicer, information regarding the Mortgage Pool as of the close of business on
the related Determination Date, which report shall contain substantially the
categories of information regarding the Mortgage Loans set forth in Annex A to
the Prospectus Supplement (calculated, where applicable, on the basis of the
most recent relevant information provided by the Mortgagors to the Master
Servicer or the Special Servicer and by the Master Servicer or the Special
Servicer, as the case may be, to the Trustee) and such information shall be
presented in a loan-by-loan and tabular format substantially similar to the
formats utilized in Annex A to the Prospectus Supplement (provided that no
information will be provided as to any repair and replacement or other cash
reserve and the only financial information to be reported on an ongoing basis
will be the actual expenses, actual revenues and actual Net Operating Income for
the respective Mortgaged Properties and a Debt Service Coverage Ratio calculated
on the basis thereof).
In addition, the Trustee shall provide or make available, either
in electronic format or by first-class mail, to such Certificateholders and
Certificate Owners and to the Rating Agencies, at the same time that the
Distribution Date Statement is delivered thereto, each (i) Delinquent Loan
Status Report, (ii) REO Status Report, (iii) Historical Loan Modification
Report, (iv) Special Servicer Loan Status Report (it being understood that a
separate Special Servicer Loan Status Report shall not be necessary if the
equivalent information is provided in the foregoing or other reports delivered
by the Master Servicer), and (v) Historical Loss Report (such five reports, the
"Servicer Reports") that has been received by the Trustee since the prior
Distribution Date. Additionally, the Trustee shall also be required to provide
or make available, either in electronic format or by first-class mail, the
Servicer Reports to any potential investor in the Certificates who requests such
reports in writing.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a REMIC II Regular Certificate a statement
containing the information as to the applicable Class set forth in clauses (i)
and (ii) above of the description of Distribution Date Statement, aggregated for
such calendar year or applicable portion thereof during which such Person was a
Certificateholder, together with such other information as the Trustee
determines to be necessary to enable Certificateholders to prepare their tax
returns for such calendar year. Such obligation of the Trustee shall be deemed
to have been satisfied to the extent that substantially comparable information
shall be provided by the Trustee pursuant to any requirements of the Code as
from time to time are in force.
Upon filing with the IRS, the REMIC Administrator shall furnish to
the Holders of the Class R-I and Class R-II Certificates the Form 1066 and shall
furnish their respective Schedules Q thereto at the times required by the Code
or the IRS, and shall provide from time to time such information and
computations with respect to the entries on such forms as any Holder of the
Class R-I and Class R-II Certificates may reasonably request.
The Trustee shall make available each month, to any interested
party, the Distribution Date Statement via the Trustee's Website, electronic
bulletin board and fax on demand service. In addition, the Trustee will make
available each month, to any interested party including the Rating Agencies, the
Underwriter and the parties hereto, the Servicer Reports on the Trustee's
Website, which shall initially be located at "www.ctslink.com/cmbs". The
Trustee's electronic bulletin board may be accessed by calling (301) 815-6620,
and its fax on demand service may be accessed by calling (301) 815-6610. In
addition, the Trustee shall also make Mortgage Loan information as presented in
the CSSA loan setup file and CSSA Loan Periodic Update File format available
each month to any Certificateholder, any Certificate Owner, the Rating Agencies
or any other interested party via the Trustee's Website. In addition, the
Trustee shall make available, as a convenience for interested parties (and not
in furtherance of the distribution of the Base Prospectus and Prospectus
Supplement under the securities laws), this Agreement, the Base Prospectus and
the Prospectus Supplement via the Trustee's Website. The Trustee shall make no
representations or warranties as to the accuracy or completeness of such
documents and will assume no responsibility therefor. For assistance with the
above-mentioned services, interested parties may call (301) 815-6600. After the
Certificates have been sold by the Underwriter, the Master Servicer may maintain
a website (the "Master Servicer's Website") at "www.bomcm.com", which may
contain, subject to Section 3.24, the information allowed or required by the
Master Servicer to produce.
In connection with providing access to the Trustee's Website or
electronic bulletin board, or to the Master Servicer's Website, the Trustee or
the Master Servicer, as applicable, may require registration and the acceptance
of a disclaimer. Neither the Master Servicer nor the Trustee shall be liable for
the dissemination of information in accordance with this Agreement.
(b) At or before 1:00 p.m. (New York City time) on the third
Business Day prior to the related Distribution Date, the Master Servicer shall
deliver or cause to be delivered to the Trustee, and as requested to the Special
Servicer and each Rating Agency (it being understood that DCR hereby requests to
receive copies of all such reports), in writing and on a computer-readable
medium, in form reasonably acceptable to the Trustee, including, without
limitation, on a loan-by-loan basis, the following reports: (1) a Delinquent
Loan Status Report, (2) an REO Status Report, (3) a Historical Loan Modification
Report, (4) a Historical Loss Report, (5) the Special Servicer Loan Status
Report most recently received by the Master Servicer (it being understood that a
separate Special Servicer Loan Status Report shall not be necessary if the
equivalent information has been included in the foregoing or other reports
delivered by the Master Servicer) and (6) a single report setting forth the
information specified in clauses (i) through (xv) below (the items specified in
clause (xiii) below to be reported once per calendar quarter, and the amounts
and allocations of payments, collections, fees and expenses with respect to
Specially Serviced Mortgage Loans and REO Properties to be based upon the report
to be delivered by the Special Servicer to the Master Servicer on the sixth
Business Day prior to the Distribution Date but no earlier in a month than one
Business Day after such Determination Date, as required by Section 4.02(c)
below) (the "CSSA Loan Periodic Update File"):
(i) the aggregate amount that is to be transferred from the
Certificate Account to the Distribution Account on the related Master
Servicer Remittance Date that is allocable to principal on or in
respect of the Mortgage Loans and any REO Loans, separately identifying
the aggregate amount of any Principal Prepayments included therein, and
(if different) the Principal Distribution Amount for the immediately
succeeding Distribution Date;
(ii) the aggregate amount that is to be transferred from the
Certificate Account to the Distribution Account on the related Master
Servicer Remittance Date that is allocable to (A) interest on or in
respect of the Mortgage Loans and any REO Loans and (B) Prepayment
Premiums;
(iii) the aggregate amount of any P&I Advances (specifying the
principal and interest portions thereof separately) to be made pursuant
to Section 4.03 of this Agreement that were made in respect of the
immediately preceding Distribution Date;
(iv) the amount of the Master Servicing Fees, Special
Servicing Fees, Workout Fees, Liquidation Fees and other servicing
compensation with respect to the Mortgage Pool for the Collection
Period ending on such Determination Date, specifying the items and
amounts of such other servicing compensation payable to the Master
Servicer, the Special Servicer and any Sub-Servicers retained by each;
(v) the number and aggregate unpaid principal balance as of
the close of business on the last day of the most recently ended
calendar month of Mortgage Loans in the Mortgage Pool (A) remaining
outstanding, (B) delinquent 30-59 days, (C) delinquent 60-89 days, (D)
delinquent 90 days or more but not in foreclosure and (E) in
foreclosure; and the number and aggregate unpaid principal balance as
of the close of business on such Determination Date of Mortgage Loans
in the Mortgage Pool (x) as to which the related Mortgaged Property has
become REO Property during the Collection Period ending on such
Determination Date, (y) as to which the related Mortgaged Property was
REO Property as of the end of such Collection Period and (z) the terms
of which have been modified during such Collection Period pursuant to
this Agreement;
(vi) the loan number and the unpaid principal balance as of
the close of business on such Determination Date of each Specially
Serviced Mortgage Loan and each other Defaulted Mortgage Loan;
(vii) with respect to any REO Property that was included in
the Trust Fund as of the close of business on such Determination Date,
the loan number of the related Mortgage Loan, the book value of such
REO Property and the amount of REO Revenues and other amounts, if any,
received on such REO Property during the related Collection Period and
the portion thereof included in the Available Distribution Amount for
the immediately succeeding Distribution Date;
(viii) with respect to any Mortgage Loan as to which the
related Mortgaged Property became an REO Property during the Collection
Period ending on such Determination Date, the loan number of such
Mortgage Loan and the Stated Principal Balance of such Mortgage Loan as
of the related Acquisition Date;
(ix) with respect to any Mortgage Loan or REO Property as to
which a Final Recovery Determination was made by the Master Servicer
during the Collection Period ending on such Determination Date, the
loan number of such Mortgage Loan or, in the case of an REO Property,
of the related Mortgage Loan, the amount of Liquidation Proceeds and/or
other amounts, if any, received thereon during such Collection Period
and the portion thereof included in the Available Distribution Amount
for the immediately succeeding Distribution Date, and any resulting
Realized Loss;
(x) the aggregate Stated Principal Balance of the Mortgage
Pool outstanding immediately before and immediately after such
Distribution Date;
(xi) the aggregate amount of Realized Losses on the Mortgage
Pool for the Collection Period ending on such Determination Date (and
the portions allocable to principal and interest);
(xii) the aggregate amount of the Additional Trust Fund
Expenses (broken down by type) withdrawn from the Certificate Account
during the Collection Period ending on such Determination Date;
(xiii) to the extent provided by the related Mortgagors,
information with respect to occupancy rates for all Mortgaged
Properties, sales per square foot with respect to all retail Mortgaged
Properties, and capital expenditures and capital reserve balances with
respect to all Mortgaged Properties, in each case in the format of the
Mortgage Loan Schedule;
(xiv) such other information on a Mortgage Loan-by-Mortgage
Loan or REO Property-by-REO Property basis as the Trustee or the
Depositor shall reasonably request in writing (including, without
limitation, information with respect to any modifications of any
Mortgage Loan, any Mortgage Loans in default or foreclosure, the
operation and disposition of REO Property and the assumption of any
Mortgage Loan); and
(xv) a brief description of any material waiver, modification
or amendment of any Mortgage Loan entered into by the Master Servicer
pursuant to this Agreement during the related Collection Period.
On the date on which the reports described above are delivered
to the Trustee, the Master Servicer shall also deliver or cause to be delivered
to the Trustee and the Rating Agencies a report, in writing and in a
computer-readable medium, in form reasonably acceptable to the Trustee,
containing the information with respect to the Mortgage Pool necessary for the
Trustee to prepare with respect to the Mortgage Pool the additional schedules
and tables required to be made available by the Trustee pursuant to Section
4.02(a) in substantially the same formats set forth in Annex C to the Prospectus
Supplement, in each case reflecting the changes in the Mortgage Pool during the
related Collection Period.
Not later than the fifth day of the calendar month following
each Master Servicer Remittance Date, the Master Servicer shall forward to the
Trustee a statement, setting forth the status of the Certificate Account as of
the close of business as to the calendar month prior to such Master Servicer
Remittance Date, stating that all distributions required by this Agreement to be
made by the Master Servicer have been made (or, in the case of any required
distribution that has not been made by the Master Servicer, specifying the
nature and status thereof) and showing, for the period from the preceding Master
Servicer Remittance Date (or, in the case of the first Master Servicer
Remittance Date, from the Cut-off Date) to such Master Servicer Remittance Date,
the aggregate of deposits into and withdrawals from the Certificate Account for
each category of deposit specified in Section 3.04(a) and each category of
withdrawal specified in Section 3.05(a). The Master Servicer shall also deliver
to the Trustee, upon reasonable request of the Trustee, any and all additional
information relating to the Mortgage Loans (which information shall be based
upon reports delivered to the Master Servicer by the Special Servicer with
respect to Specially Serviced Mortgage Loans and REO Properties).
Following the end of each calendar quarter, commencing with
the calendar quarter ended March 31, 2000, within 105 days (or 180 days, in the
case of annual operating information), of receipt by the Master Servicer, as to
non-Specially Serviced Mortgage Loans, and within 30 days after receipt by the
Special Servicer, as to Specially Serviced Mortgage Loans, of any annual or
quarterly operating statements or rent rolls with respect to any Mortgaged
Property or REO Property, the Master Servicer or the Special Servicer, as
applicable, shall, based upon such operating statements or rent rolls, prepare
(or, if previously prepared, update) the written analysis of the operations (an
"Operating Statement Analysis Report"), and the Special Servicer shall remit
each Operating Statement Analysis Report prepared by it or the related data
fields, together with the underlying operating statements and rent rolls, to the
Master Servicer in an electronic format reasonably acceptable to the Master
Servicer. All Operating Statement Analysis Reports shall be maintained by the
Master Servicer with respect to each Mortgaged Property and REO Property, and
the Master Servicer shall forward copies thereof to the Trustee and, upon
request, the Rating Agencies, the Directing Certificateholder and any
Certificateholder or, to the extent the Trustee or a Certificate Owner has
confirmed its ownership interest in the Certificates held thereby, such
Certificate Owner, together with the related operating statement or rent rolls.
The Master Servicer shall maintain an Operating Statement Analysis Report with
respect to each Mortgaged Property and REO Property. Each such Operating
Statement Analysis Report shall be substantially in the form of Exhibit K
attached hereto (or, at the discretion of the Master Servicer (provided that no
less information is provided than is set forth in Exhibit K), in a CSSA format).
Each Operating Statement Analysis Report shall be prepared using the standard
CSSA normalization methodology as in effect from time to time.
The Special Servicer, on the sixth day (for delivery on such
date) prior to each Distribution Date but in no event sooner than one Business
Day after the Determination Date, shall forward to the Master Servicer all
information collected by the Master Servicer which the Master Servicer is
required to include in its preparation of the Special Servicer Loan Status
Report. Further, the Master Servicer shall cooperate with the Special Servicer
and provide the Special Servicer with the information in the possession of the
Master Servicer reasonably requested by the Special Servicer, in writing, to the
extent required to allow the Special Servicer to perform its obligations under
this Agreement with respect to those Mortgage Loans serviced by the Master
Servicer.
The Master Servicer shall use its reasonable efforts to notify
the Rating Agencies in a timely manner of any change in the identity of either
of the two largest tenants of any retail Mortgaged Property and any casualty at
or condemnation proceeding with respect to any Mortgaged Property, subject to
its becoming aware of such change or event.
To the extent the statements, reports and information (or
portions thereof) to be delivered by the Master Servicer under this Section
4.02(b) are derived from underlying information to be delivered to the Master
Servicer by the Special Servicer, the Master Servicer shall not be liable for
any failure to deliver such statement, report or information (or portion
thereof) on the prescribed dates, to the extent such failure is caused by the
Special Servicer's failure to deliver such underlying information in a timely
manner. Absent actual knowledge to the contrary, the Master Servicer may
conclusively rely on any such information forwarded to it by the Special
Servicer and shall have no obligation to verify the same.
(c) On the sixth day prior to each Distribution Date but in no
event sooner than one Business Day after the Determination Date, the Special
Servicer shall forward to the Master Servicer (A) data fields required for the
Master Servicer to prepare the Special Servicer Loan Status Report and (B) all
information the Master Servicer will be required to include in the other reports
that the Master Servicer is obligated to deliver to the Trustee pursuant to
Section 4.02(b), to the extent such information relates to any Specially
Serviced Mortgage Loan or any REO Property. The Special Servicer shall also
deliver to the Master Servicer and the Trustee, upon the reasonable written
request of either of them, any and all additional information in the possession
of the Special Servicer relating to the Specially Serviced Mortgage Loans and
the REO Properties.
The Special Servicer shall cooperate with the Master Servicer
and provide the Master Servicer with the information in the possession of the
Special Servicer reasonably requested by the Master Servicer, in writing, to the
extent required to allow the Master Servicer to perform its obligations under
this Agreement with respect to the Specially Serviced Mortgage Loans and REO
Properties. Additional information regarding the Specially Serviced Mortgage
Loans, including, without limitation, any financial or occupancy information
(including lease summaries) provided to the Special Servicer by the Mortgagors
or otherwise obtained, shall be delivered to the Master Servicer, within ten
days of receipt.
SECTION 4.03 P&I Advances.
(a) On or before 1:00 p.m., New York City time, on each Master
Servicer Remittance Date, the Master Servicer shall either (i) deposit into the
Distribution Account from its own funds an amount equal to the aggregate amount
of P&I Advances, if any, to be made in respect of the related Distribution Date,
(ii) apply amounts held in the Certificate Account for future distribution to
Certificateholders in subsequent months in discharge of any such obligation to
make P&I Advances, or (iii) make P&I Advances in the form of any combination of
(i) and (ii) aggregating the total amount of P&I Advances to be made; provided
that if Late Collections of any of the delinquent principal and/or interest in
respect of which it is to make P&I Advances on any Master Servicer Remittance
Date are then on deposit in the Certificate Account, the Master Servicer shall
use such Late Collections (net of any Master Servicing Fees (but not the Special
Servicer's Standby Fee), Liquidation Fees and Workout Fees payable therefrom) to
make such P&I Advances. Any amounts held in the Certificate Account for future
distribution and so used to make P&I Advances (other than the Late Collections
of the delinquent principal and/or interest contemplated by the proviso to the
preceding sentence) shall be appropriately reflected in the Master Servicer's
records and replaced by the Master Servicer by deposit in the Certificate
Account on or before the next succeeding Determination Date (to the extent not
previously replaced through the deposit of Late Collections of the delinquent
principal and/or interest in respect of which such P&I Advances were made). If,
as of 1:00 p.m., New York City time, on any Master Servicer Remittance Date, the
Master Servicer shall not have made any P&I Advance required to be made on such
date pursuant to this Section 4.03(a) (and shall not have delivered to the
Trustee the requisite Officer's Certificate and documentation related to a
determination of nonrecoverability of a P&I Advance), then the Trustee shall
provide notice of such failure to a Servicing Officer of the Master Servicer by
facsimile transmission sent to telecopy no. (214) 290-4293 (or such alternative
number provided by the Master Servicer to the Trustee in writing) and by
telephone to Paul G. Smyth at telephone no. (214) 290-2505 (or such alternative
number provided by the Master Servicer to the Trustee in writing) as soon as
possible, but in any event before 3:00 p.m., New York City time, on such Master
Servicer Remittance Date. If, after such notice, the Trustee does not receive
the full amount of such P&I Advances by the close of business (New York City
time) on such Master Servicer Remittance Date, then (i) unless the Trustee
determines that such Advance would be a Nonrecoverable P&I Advance if made, the
Trustee shall make, by 10:00 a.m. on the Distribution Date or in any event by
such time as shall be required in order to make the required distribution on
such Distribution Date, the portion of such P&I Advances that was required to
be, but was not, made by the Master Servicer on such Master Servicer Remittance
Date and (ii) such failure shall constitute an Event of Default on the part of
the Master Servicer.
(b) The aggregate amount of P&I Advances to be made in respect
of the Mortgage Loans (including, without limitation, Balloon Mortgage Loans
delinquent as to their respective Balloon Payments) and any REO Loans for any
Distribution Date shall equal, subject to subsection (c) below, the aggregate of
all Monthly Payments (other than Balloon Payments) and any Assumed Monthly
Payments, in each case net of related Master Servicing Fees (net of the Standby
Fee) and Workout Fees payable hereunder, that were due or deemed due, as the
case may be, in respect thereof on their respective Due Dates during the related
Collection Period and that were not paid by or on behalf of the related
Mortgagors or otherwise collected as of the close of business on the last day of
the related Collection Period; provided that, if an Appraisal Reduction Amount
exists with respect to any Required Appraisal Loan, then, in the event of
subsequent delinquencies thereon, the interest portion of the P&I Advance in
respect of such Required Appraisal Loan for the related Distribution Date shall
be reduced (it being herein acknowledged that there shall be no reduction in the
principal portion of such P&I Advance) to equal the product of (i) the amount of
the interest portion of such P&I Advance for such Required Appraisal Loan for
such Distribution Date without regard to this proviso, multiplied by (ii) a
fraction, expressed as a percentage, the numerator of which is equal to the
Stated Principal Balance of such Required Appraisal Loan immediately prior to
such Distribution Date, net of the related Appraisal Reduction Amount, if any,
and the denominator of which is equal to the Stated Principal Balance of such
Required Appraisal Loan immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I
Advance shall be required to be made hereunder if such P&I Advance would, if
made, constitute a Nonrecoverable P&I Advance. In addition, Nonrecoverable P&I
Advances shall be reimbursable pursuant to Section 3.05(a) out of general
collections on the Mortgage Pool on deposit in the Certificate Account. The
determination by the Master Servicer or, if applicable, the Trustee, that it has
made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made,
would constitute a Nonrecoverable P&I Advance, shall be evidenced by an
Officer's Certificate delivered promptly (and, in any event, in the case of a
proposed P&I Advance by the Master Servicer, no less than 5 Business Days prior
to the related Master Servicer Remittance Date) to the Trustee (or, if
applicable, retained thereby), the Depositor and the Rating Agencies, setting
forth the basis for such determination, together with ( such determination is
prior to the liquidation of the related Mortgage Loan or REO Property) a copy of
an Appraisal of the related Mortgaged Property or REO Property, as the case may
be, which shall have been performed within the twelve months preceding such
determination, and further accompanied by any other information that the Master
Servicer or the Special Servicer may have obtained and that supports such
determination. The Trustee shall deliver such Officer's Certificate as soon as
practicable after its determination that such P&I Advance would be
nonrecoverable. If such an Appraisal shall not have been required and performed
pursuant to the terms of this Agreement, the Master Servicer or the Special
Servicer, as the case may be, may, subject to its reasonable and good faith
determination that such Appraisal will demonstrate the nonrecoverability of the
related Advance, obtain an Appraisal for such purpose at the expense of the
Trust. The Trustee shall be entitled to rely on any determination of
nonrecoverability that may have been made by the Master Servicer or the Special
Servicer with respect to a particular P&I Advance, and the Master Servicer shall
be entitled to rely on any determination of nonrecoverability that may have been
made by the Special Servicer with respect to a particular P&I Advance.
(d) As and to the extent permitted by Section 3.05(a), the
Master Servicer and the Trustee shall each be entitled to receive interest at
the Reimbursement Rate in effect from time to time, accrued on the amount of
each P&I Advance made thereby (out of its own funds) for so long as such P&I
Advance is outstanding (or, in the case of Advance Interest payable to the
Master Servicer, if earlier, until the Late Collection of the delinquent
principal and/or interest in respect of which such P&I Advance was made has been
received by the Master Servicer or any of its Sub-Servicers), and such interest
will be paid: first, out of any Default Charges collected on or in respect of
the related Mortgage Loan during, and allocable to, the period, if any, that it
was a Specially Serviced Mortgage Loan or an REO Loan; and second, at any time
coinciding with or following the reimbursement of such P&I Advance, out of
general collections on the Mortgage Loans and any REO Properties on deposit in
the Certificate Account. As and to the extent provided by Section 3.05(a), the
Master Servicer shall reimburse itself or the Trustee, as appropriate, for any
P&I Advance made thereby as soon as practicable after funds available for such
purpose are deposited in the Certificate Account, and in no event shall interest
accrue in accordance with this Section 4.03(d) on any P&I Advance as to which
the corresponding Late Collection had been received as of the related date on
which such P&I Advance was made.
SECTION 4.04 Allocation of Realized Losses and Additional
Trust Fund Expenses.
(a) On each Distribution Date, following the distributions to
be made to the Certificateholders on such date pursuant to Section 4.01(b), the
Trustee shall determine the amount, if any, by which (i) the then aggregate
Certificate Principal Balance of the Sequential Pay Certificates, exceeds (ii)
the aggregate Stated Principal Balance of the Mortgage Pool that will be
outstanding immediately following such Distribution Date. If such excess does
exist, then the Class Principal Balances of the Class K, Class J, Class H, Class
G, Class F, Class E, Class D, Class C and Class B Certificates shall be reduced
sequentially, in that order, in each case, until such excess or the related
Class Principal Balance is reduced to zero (whichever occurs first). If, after
the foregoing reductions, the amount described in clause (i) of the second
preceding sentence still exceeds the amount described in clause (ii) of the
second preceding sentence, then the respective Class Principal Balances of the
Class A-1 and Class A-2 Certificates shall be reduced, pro rata in accordance
with the relative sizes of the then outstanding Class Principal Balances of such
Classes of Certificates, until such excess or each such Class Principal Balance
is reduced to zero (whichever occurs first). Such reductions in the Class
Principal Balances of the respective Classes of the Sequential Pay Certificates
shall be deemed to be allocations of Realized Losses and Additional Trust Fund
Expenses, to the extent not covered by reductions in distributions of interest
pursuant to the allocations set forth in Section 4.01(b).
(b) With respect to any Distribution Date, any Realized Losses
or Additional Trust Fund Expenses allocated pursuant to Section 4.04(a) with
respect to such Distribution Date shall reduce the Uncertificated Principal
Balances of the REMIC I Regular Interests as a write-off and shall be allocated
among the Class LA-1, Class LA-2, Class LB, Class LC, Class LD, Class LE, Class
LF Class LG, Class LH, Class LJ and Class LK Uncertificated Interests in the
same priority as its Class of Corresponding Certificates pursuant to Section
4.04(a).
SECTION 4.05 Interest Reserve Account.
(a) The Trustee shall establish and maintain the Interest
Reserve Account in the Trustee's name for the benefit of the Certificateholders.
The Interest Reserve Account shall be established and maintained as an Eligible
Account, which the Trustee may (but shall not be obligated to) invest only in
Permitted Investments in accordance with Section 3.06. On each Master Servicer
Remittance Date occurring in February and each Master Servicer Remittance Date
in January of any year which is not a leap year in or after the year in which an
Interest Reserve Event has occurred, and so long as the Class A-2 Certificates
remain outstanding, the Master Servicer shall withdraw from the Certificate
Account, in respect of each Mortgage Loan which accrues interest on an
Actual/360 Basis, and remit to the Trustee for deposit into the Interest Reserve
Account, an amount equal to one day's interest at the related Mortgage Rate on
the Stated Principal Balance of each such Mortgage Loan as of the Due Date in
the month preceding the month in which such Master Servicer Remittance Date
occurs (as calculated by the Master Servicer, who shall notify the Trustee of
such amount on or prior to the related Master Servicer Remittance Date), to the
extent a Monthly Payment or P&I Advance is made in respect thereof (all amounts
so deposited in any consecutive January (if applicable) and February, "Withheld
Amounts"). On or prior to the Master Servicer Remittance Date in March of each
calendar year, the Trustee shall transfer to the Distribution Account the
aggregate of all Withheld Amounts on deposit in the Interest Reserve Account.
(b) The Master Servicer shall provide written notice to the
Trustee of the occurrence of an Interest Reserve Event on or prior to the
related Master Servicer Remittance Date.
(c) The Trustee shall provide the Master Servicer timely
written notice that the Class A-2 Certificates are no longer outstanding.
ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates.
(a) The Certificates will be substantially in the respective
forms annexed hereto as Exhibits A-1 through and including A-14; provided that
any of the Certificates may be issued with appropriate insertions, omissions,
substitutions and variations, and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
The Certificates will be issuable in registered form only; provided, however,
that in accordance with Section 5.03 beneficial ownership interests in the REMIC
Regular Certificates shall initially be held and transferred through the
book-entry facilities of the Depository. The REMIC II Regular Certificates will
be issuable in denominations corresponding to initial Certificate Principal
Balances or Certificate Notional Amounts, as the case may be, as of the Closing
Date of not less than $100,000 (or, with respect to the Class A Certificates,
$10,000 and, with respect to the Class X Certificates, $1,000,000) and any whole
dollar denomination in excess thereof; provided, however, that a single
Certificate of each Class thereof may be issued in a different denomination.
Each Class of Residual Certificates will be issuable only in a denomination
representing the entire Class. With respect to any Certificate or any beneficial
interest in a Certificate, the "Denomination" thereof shall be (i) the amount
(a) set forth on the face thereof or, (b) set forth on a schedule attached
thereto or (c) in the case of any beneficial interest in a Book-Entry
Certificate, the interest of the related Certificate Owner in the applicable
Class of Certificates as reflected on the books and records of the Depository or
related Participants, as applicable, (ii) expressed in terms of initial
Certificate Balance or initial Notional Amount, as applicable, and (iii) be in
an authorized denomination, as set forth above. The Book-Entry Certificates will
be issued as one or more certificates registered in the name of a nominee
designated by the Depository, and Certificate Owners will hold interests in the
Book-Entry Certificates through the book-entry facilities of the Depository in
the minimum Denominations and aggregate Denominations as set forth in the above.
No Certificate Owner of a Book-Entry Certificate of any Class thereof will be
entitled to receive a Definitive Certificate representing its interest in such
Class, except as provided in Section 5.03 herein. Unless and until Definitive
Certificates are issued in respect of a Class of Book-Entry Certificates,
beneficial ownership interests in such Class of Certificates will be maintained
and transferred on the book-entry records of the Depository and Depository
Participants, and all references to actions by Holders of such Class of
Certificates will refer to action taken by the Depository upon instructions
received from the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures and,
except as otherwise set forth herein, all references herein to payments,
notices, reports and statements to Holders of such Class of Certificates will
refer to payments, notices, reports and statements to the Depository or its
nominee as the registered Holder thereof, for distribution to the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee in its capacity as trustee hereunder by an
authorized officer. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Trustee shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication;
provided that the Certificates issued on the Closing Date shall, in any event,
be dated the Closing Date.
(c) Any Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, or as may, consistently
herewith, be determined by the officers executing such Certificates, as
evidenced by their execution thereof.
SECTION 5.02 Registration of Transfer and Exchange of
Certificates.
(a) At all times during the term of this Agreement, there
shall be maintained at the office of the Certificate Registrar a Certificate
Register in which, subject to such reasonable regulations as the Certificate
Registrar (located as of the Closing Date at Norwest Center, Sixth and
Marquette, Minneapolis, Minnesota 55479-0113) may prescribe, the Certificate
Registrar shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. The Trustee is hereby
initially appointed (and hereby agrees to act in accordance with the terms
hereof) as Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided. The Trustee may
appoint, by a written instrument delivered to the Depositor, the Master
Servicer, the Special Servicer and the REMIC Administrator, any other bank or
trust company to act as Certificate Registrar under such conditions as the
predecessor Certificate Registrar may prescribe, provided that the Trustee shall
not be relieved of any of its duties or responsibilities hereunder as
Certificate Registrar by reason of such appointment. If the Trustee resigns or
is removed in accordance with the terms hereof, the successor trustee shall
immediately succeed to its predecessor's duties as Certificate Registrar. The
Depositor, the Master Servicer, the Special Servicer and the REMIC Administrator
shall have the right to inspect the Certificate Register or to obtain a copy
thereof at all reasonable times, and to rely conclusively upon a certificate of
the Certificate Registrar as to the information set forth in the Certificate
Register. Upon request, the Trustee shall promptly inform, or cause the
Certificate Registrar to inform, the Master Servicer or the Special Servicer, as
applicable, of the identity of all Certificateholders of the Controlling Class.
If three or more Certificateholders (hereinafter referred to
as "applicants") apply in writing to the Trustee, and such application states
that the applicants desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates and is
accompanied by a copy of the communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, afford such applicants access during normal business hours to
the most recent list of Certificateholders held by the Trustee. If the Trustee
is no longer the Certificate Registrar and such a list is as of a date more than
90 days prior to the date of receipt of such applicants' request, the Trustee
shall promptly request from the Certificate Registrar a current list as provided
above, and shall afford such applicants access to such list promptly upon
receipt.
Every Certificateholder, by receiving and holding such list,
agrees with the Certificate Registrar and the Trustee that neither the
Certificate Registrar nor the Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
(b) No transfer of any Non-Registered Certificate shall be
made unless that transfer is made pursuant to an effective registration
statement under the Securities Act, and effective registration or qualification
under applicable state securities laws, or is made in a transaction which does
not require such registration or qualification. If a transfer (other than one by
the Depositor to an Affiliate thereof) is to be made in reliance upon an
exemption from the Securities Act, and under the applicable state securities
laws, then either: (i) the Certificate Registrar shall require that the
transferee deliver to the Certificate Registrar an investment representation
letter (the "Investment Representation Letter") substantially in the form of
Exhibit B attached hereto, which Investment Representation Letter shall certify,
among other things, that the transferee is an institutional "accredited
investor" as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act (an "Institutional Accredited Investor") or a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act (a
"Qualified Institutional Buyer"), and the Certificate Registrar may also require
that the transferee deliver to the Certificate Registrar an Opinion of Counsel
if such transferee is not a Qualified Institutional Buyer or (ii) if the
certifications described in the preceding clause (i) cannot be provided, (a) the
Certificate Registrar shall require an Opinion of Counsel reasonably
satisfactory to the Certificate Registrar and the Depositor that such transfer
may be made pursuant to an exemption, describing the applicable exemption and
the basis therefor, from registration or qualification under the Securities Act,
applicable state securities laws and other relevant laws, which Opinion of
Counsel shall not be an expense of the Trust Fund, the Certificate Registrar,
the Depositor or the Trustee and (b) the Certificate Registrar shall require the
transferor to execute a certification in form and substance satisfactory to the
Certificate Registrar setting forth the facts surrounding such transfer;
provided, however, that a transfer of a Non-Registered Certificate of any such
Class may be made to a trust if the transferor provides to the Certificate
Registrar and to the Trustee a certification that interests in such trust may
only be transferred subject to requirements substantially to the effect set
forth in this Section 5.02. The Servicer will furnish, or cause to be furnished,
upon the request of any Holder of Non-Registered Certificates, to a prospective
purchaser of such Non-Registered Certificates who is a Qualified Institutional
Buyer, such information as is specified in paragraph (d)(4) of Rule 144A with
respect to the Trust Fund, unless, at the time of such request, the entity with
respect to which such information is to be provided is subject to the reporting
requirements of Section 15(d) of the Exchange Act. None of the Depositor, the
Trustee, the Servicer or the Certificate Registrar is obligated to register or
qualify any Class of Non-Registered Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under this
Agreement to permit the transfer of any Non-Registered Certificate without
registration or qualification. Any Holder of a Non-Registered Certificate
desiring to effect such a transfer shall, and does hereby agree to, indemnify
the Depositor, the Trustee, the Servicer and the Certificate Registrar against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws. Unless the Certificate Registrar
determines otherwise in accordance with applicable law and the rules and
procedures of, or applicable to, the Depository (the "Depository Rules"),
transfers of a beneficial interest in a Book-Entry Certificate representing an
interest in a Non-Registered Certificate that is not rated in one of the top
four categories by a nationally recognized statistical rating organization to
(i) an Institutional Accredited Investor will require delivery in the form of a
Definitive Certificate and the Certificate Registrar shall register such
transfer only upon compliance with the foregoing provisions of this Section
5.02(b) or (ii) a Qualified Institutional Buyer may only be effectuated by means
of an "SRO Rule 144A System" approved for such purpose by the Commission.
(c) With respect to the Subordinate Certificates, no sale,
transfer, pledge or other disposition by any Holder of any such Certificate
shall be made unless the Certificate Registrar shall have received either (i) a
representation letter from the proposed purchaser or transferee of such
Certificate substantially in the form of Exhibit F attached hereto, to the
effect that such proposed purchaser or transferee is not (a) an employee benefit
plan subject to the fiduciary responsibility provisions of ERISA or Section 4975
of the Code, or a governmental plan (as defined in Section 3(32) of ERISA)
subject to any federal, state or local law ("Similar Law") which is, to a
material extent, similar to the foregoing provisions of ERISA or the Code (each
a "Plan") or (b) a person acting on behalf of or using the assets of any such
Plan (including an entity whose underlying assets include Plan assets by reason
of investment in the entity by such Plan and the application of Department of
Labor Regulation ss. 2510.3-101), other than (except with respect to a Residual
Certificate) an insurance company using the assets of its general account under
circumstances whereby the purchase and holding of such Certificates by such
insurance company would be exempt from the prohibited transaction provisions of
ERISA and the Code under Prohibited Transaction Class Exemption 95-60 or (ii) if
such Certificate is presented for registration in the name of a purchaser or
transferee that is any of the foregoing, an Opinion of Counsel in form and
substance satisfactory to the Certificate Registrar and the Depositor to the
effect that the acquisition and holding of such Certificate by such purchaser or
transferee will not result in the assets of the Trust Fund being deemed to be
"plan assets" and subject to the fiduciary responsibility provisions of ERISA,
the prohibited transaction provisions of the Code or the provisions of any
Similar Law, will not constitute or result in a "prohibited transaction" within
the meaning of ERISA, Section 4975 of the Code or any Similar Law, and will not
subject the Trustee, the Certificate Registrar, the Master Servicer, the Special
Servicer, the Underwriter, the Placement Agent or the Depositor to any
obligation or liability (including obligations or liabilities under ERISA,
Section 4975 of the Code or any such Similar Law) in addition to those set forth
in the Agreement. The Certificate Registrar shall not register the sale,
transfer, pledge or other disposition of any such Certificate unless the
Certificate Registrar has received either the representation letter described in
clause (i) above or the Opinion of Counsel described in clause (ii) above. The
costs of any of the foregoing representation letters or Opinions of Counsel
shall not be borne by any of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Underwriter, the Placement Agent, the Certificate
Registrar or and the Trust Fund. Each Certificate Owner of a Subordinate
Certificate shall be deemed to represent that it is not a Person specified in
clauses (a) or (b) above. Any transfer, sale, pledge or other disposition of any
such Certificates that would constitute or result in a prohibited transaction
under ERISA, Section 4975 of the Code or any Similar Law, or would otherwise
violate the provisions of this Section 5.02(c) shall be deemed absolutely null
and void ab initio, to the extent permitted under applicable law.
So long as any of the Class of Certificates remains
outstanding, the Master Servicer will make available, or cause to be made
available, upon request, to any Holder and any Person to whom any such
Certificate of any such Class of Certificates may be offered or sold,
transferred, pledged or otherwise disposed of by such Holder, information with
respect to the Master Servicer, the Special Servicer or the Mortgage Loans
necessary to the provision of an Opinion of Counsel described in this Section
5.02(c).
(d) (i) Each Person who has or who acquires any Ownership
Interest in a Residual Certificate shall be deemed by the acceptance
or acquisition of such Ownership Interest to have agreed to be bound
by the following provisions and to have irrevocably authorized the
Trustee under clause (ii) below to deliver payments to a Person other
than such Person. The rights of each Person acquiring any Ownership
Interest in a Residual Certificate are expressly subject to the
following provisions:
(A) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Permitted
Transferee and shall promptly notify the Trustee and
the REMIC Administrator of any change or impending
change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any
Ownership Interest in a Residual Certificate (other
than in connection with the initial issuance thereof or
the transfer thereof among the Depositor and its
Affiliates), the Certificate Registrar shall require
delivery to it, and shall not register the Transfer of
any Residual Certificate until its receipt of, an
affidavit and agreement substantially in the form
attached hereto as Exhibit C-1 (a "Transfer Affidavit
and Agreement") from the proposed Transferee, in form
and substance satisfactory to the Certificate
Registrar, representing and warranting, among other
things, that such Transferee is a Permitted Transferee,
that it is not acquiring its Ownership Interest in the
Residual Certificate that is the subject of the
proposed Transfer as a nominee, trustee or agent for
any Person that is not a Permitted Transferee, that for
so long as it retains its Ownership Interest in a
Residual Certificate it will endeavor to remain a
Permitted Transferee, and that it has reviewed the
provisions of this Section 5.02(d) and agrees to be
bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit
and Agreement by a proposed Transferee under clause (B)
above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership
Interest in a Residual Certificate to such proposed
Transferee shall be effected.
(D) Except in connection with the initial issuance of the
Residual Certificates or any transfer thereof among the
Depositor and its Affiliates, each Person holding or
acquiring any Ownership Interest in a Residual
Certificate shall agree (1) to require a Transfer
Affidavit and Agreement from any prospective Transferee
to whom such Person attempts to transfer its Ownership
Interest in such Residual Certificate and (2) not to
transfer its Ownership Interest in such Residual
Certificate unless it provides to the Certificate
Registrar a certificate substantially in the form
attached hereto as Exhibit C-2 stating that, among
other things, it has no actual knowledge that such
prospective Transferee is not a Permitted Transferee.
(ii) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
5.02(d), then the last preceding Holder of such Residual Certificate
that was in compliance with the provisions of this Section 5.02(d)
shall be restored, to the extent permitted by law, to all rights as
Holder thereof retroactive to the date of registration of such Transfer
of such Residual Certificate. None of the Trustee, the Master Servicer,
the Special Servicer, the REMIC Administrator or the Certificate
Registrar shall be under any liability to any Person for any
registration of Transfer of a Residual Certificate that is in fact not
permitted by this Section 5.02(d) or for making any payments due on
such Certificate to the Holder thereof or for taking any other action
with respect to such Holder under the provisions of this Agreement.
(iii) The REMIC Administrator shall make available to the
Internal Revenue Service and those Persons specified by the REMIC
Provisions all information necessary to compute any tax imposed as a
result of the Transfer of an Ownership Interest in a Residual
Certificate to any Person who is a Disqualified Organization or a
nominee, agent or middleman thereof, including the information
described in Treasury Regulations Sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual
Certificate. The Person holding such Ownership Interest shall be
responsible for the reasonable compensation of the REMIC Administrator
for providing such information.
(e) Subject to the restrictions on transfer and exchange set
forth in this Section 5.02, the Holder of any Definitive Certificate may
transfer or exchange the same in whole or in part (with a Denomination equal to
any authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange in the case of
exchange. Subject to the restrictions on transfer set forth in this Section 5.02
and Depository Rules, any Certificate Owner owning a beneficial interest in a
Non-Registered Certificate may cause the Certificate Registrar to request that
the Depository exchange such Certificate Owner's beneficial interest in a
Book-Entry Certificate for a Definitive Certificate or Certificates. Following a
proper request for transfer or exchange, the Certificate Registrar shall,
execute and deliver at such offices or at the office of such transfer agent, as
the case may be, to the transferee (in the case of transfer) or Holder (in the
case of exchange) or send by first class mail (at the risk of the transferee in
the case of transfer or Holder in the case of exchange) to such address as the
transferee or Holder, as applicable, may request, a Definitive Certificate or
Certificates, as the case may require, for a like aggregate Denomination and in
such Denomination or Denominations as may be requested.
(f) In the event a Responsible Officer of the Certificate
Registrar becomes aware that a Definitive Certificate or a beneficial interest
in a Book-Entry Certificate representing a Non-Registered Certificate is being
held by or for the benefit of a Person who is not an Eligible Investor, or that
such holding is unlawful under the laws of a relevant jurisdiction, then the
Certificate Registrar shall have the right to void such transfer, if permitted
under applicable law, or to require the investor to sell such Definitive
Certificate or beneficial interest in such Book-Entry Certificate to an Eligible
Investor within 14 days after notice of such determination and each
Certificateholder by its acceptance of a Certificate authorizes the Certificate
Registrar to take such action.
(g) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates. In addition, in connection with any transfer to an Institutional
Accredited Investor, the transferor shall reimburse the Trust Fund for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided herein) incurred by the Certificate
Registrar in connection with such transfer.
(i) Subsequent to the initial issuance of the Certificates,
the Trustee shall be responsible for the preparation of physical Certificates in
connection with any transfer or exchange; provided that the correct form of
Certificate of each Class shall be provided by the Depositor to the Trustee on
diskette on or about the Closing Date. All Certificates surrendered for transfer
and exchange shall be physically canceled by the Certificate Registrar, and the
Certificate Registrar shall hold or destroy such canceled Certificates in
accordance with its standard procedures.
(j) The Certificate Registrar shall be required to provide the
Depositor and the REMIC Administrator with an updated copy of the Certificate
Register on or about January 1 of each year, commencing January 1, 2000, and
shall be required to provide the Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator with an updated copy of the Certificate
Register at other times promptly upon written request therefor.
(k) If a Person is acquiring any Non-Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee (or such Certificate Owner) to confirm that,
it has (i) sole investment discretion with respect to each such account and (ii)
full power to make the acknowledgments, representations, warranties,
certification and agreements with respect to each such account as set forth in
subsections (b), (c) and (d), as applicable, of this Section 5.02.
SECTION 5.03 Book-Entry Certificates.
(a) The Class A-1, Class A-2, Class X, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J and Class K Certificates shall
initially be issued as one or more Certificates registered in the name of the
Depository or its nominee and, except as provided in subsection (c) below,
transfer of such Certificates may not be registered by the Certificate Registrar
unless such transfer is to a successor Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and transfer their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided in subsection (c) below,
shall not be entitled to fully registered, physical Certificates ("Definitive
Certificates") in respect of such Ownership Interests. All transfers by
Certificate Owners of their respective Ownership Interests in the Book-Entry
Certificates shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing each such Certificate
Owner. Each Depository Participant shall only transfer the Ownership Interests
in the Book-Entry Certificates of Certificate Owners it represents or of
brokerage firms for which it acts as agent in accordance with the Depository's
normal procedures. Neither the Certificate Registrar nor the Trustee shall have
any responsibility to monitor or restrict the transfer of Ownership Interests in
Certificates through the book-entry facilities of the Depository.
(b) The Depositor, the Mortgage Loan Seller, the Trustee, the
Master Servicer, the Special Servicer, the REMIC Administrator and the
Certificate Registrar may for all purposes, including the making of payments due
on the Book-Entry Certificates, deal with the Depository as the authorized
representative of the Certificate Owners with respect to such Certificates for
the purposes of exercising the rights of Certificateholders hereunder. The
rights of Certificate Owners with respect to the Book-Entry Certificates shall
be limited to those established by law and agreements between such Certificate
Owners and the Depository Participants and brokerage firms representing such
Certificate Owners. Multiple requests and directions from, and votes of, the
Depository as Holder of the Book-Entry Certificates with respect to any
particular matter shall not be deemed inconsistent if they are made with respect
to different Certificate Owners. The Trustee may establish a reasonable record
date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
If any party hereto requests from the Depository a list of the Depository
Participants in respect of any Class or Classes of the Book-Entry Certificates,
the cost thereof shall be borne by the party on whose behalf such request is
made (but in no event shall any such cost be borne by the Trustee).
(c) If (i)(A) the Depositor advises the Trustee and the
Certificate Registrar in writing that the Depository is no longer willing or
able to properly discharge its responsibilities with respect to any Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to any Class of the Book-Entry
Certificates, the Certificate Registrar shall notify all affected Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of any Class of the
Book-Entry Certificates by the Depository, accompanied by registration
instructions for registration of transfer, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, the appropriate Definitive
Certificates to the Certificate Owners identified in such instructions. None of
the Depositor, the Mortgage Loan Seller, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator or the Certificate Registrar
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Certificate Registrar for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co.
or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed to
such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(f) If a Holder of a Definitive Certificate wishes at any time
to transfer such Certificate to a Person who wishes to take delivery thereof in
the form of a beneficial interest in the Book-Entry Certificate, such transfer
may be effected only in accordance with Depository Rules and this Section
5.03(f). Upon receipt by the Certificate Registrar at the Registrar Office of
(i) the Definitive Certificate to be transferred with an assignment and transfer
pursuant to this Section 5.03(f), (ii) written instructions given in accordance
with Depository Rules directing the Certificate Registrar to credit or cause to
be credited to another account a beneficial interest in the related Book-Entry
Certificate, in an amount equal to the Denomination of the Definitive
Certificate to be so transferred, (iii) a written order given in accordance with
the Depository Rules containing information regarding the account to be credited
with such beneficial interest and (iv) if the affected Certificate is a
Non-Registered Certificate an Investment Representation Letter from the
transferee to the effect that such transferee is a Qualified Institutional
Buyer, the Certificate Registrar shall cancel such Definitive Certificate,
execute and deliver a new Definitive Certificate for the Denomination of the
Definitive Certificate not so transferred, registered in the name of the Holder
or the Holder's transferee (as instructed by the Holder), and the Certificate
Registrar shall instruct the Depository or the custodian holding such Book-Entry
Certificate on behalf of the Depository to increase the Denomination of the
related Book-Entry Certificate by the Denomination of the Definitive Certificate
to be so transferred, and to credit or cause to be credited to the account of
the Person specified in such instructions a corresponding Denomination of such
Book-Entry Certificate.
SECTION 5.04 Mutilated, Destroyed, Lost or Stolen
Certificates.
If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (ii)
there is delivered to the Trustee and the Certificate Registrar such security or
indemnity as may reasonably be required by them to save each of them harmless,
then, in the absence of actual notice to the Trustee or the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser, the
Trustee shall execute and the Certificate Registrar shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and like Percentage
Interest. Upon the issuance of any new Certificate under this Section, the
Trustee and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee and the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the applicable REMIC created hereunder, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.05 Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar and any agents
of any of them may treat the person in whose name any Certificate is registered
as the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 4.01 and for all other purposes whatsoever, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any agent of
any of them shall be affected by notice to the contrary.
SECTION 5.06 Certification by Certificate Owners.
(a) Each Certificate Owner is hereby deemed by virtue of its
acquisition of an Ownership Interest in the Book-Entry Certificates to agree to
comply with the applicable transfer requirements of Sections 5.02(b) and
5.02(c).
(b) To the extent that under the terms of this Agreement, it
is necessary to determine whether any Person is a Certificate Owner, the Trustee
shall make such determination based on a certificate of such Person which shall
specify, in reasonable detail satisfactory to the Trustee, the Class and
Certificate Principal Balance or Certificate Notional Amount, as the case may
be, of the Book-Entry Certificate beneficially owned, the value of such Person's
interest in such Certificate and any intermediaries through which such Person's
Ownership Interest in such Book-Entry Certificate is held; provided, however,
that the Trustee shall not knowingly recognize such Person as a Certificate
Owner if such Person, to the knowledge of a Responsible Officer of the Trustee,
acquired its Ownership Interest in a Book-Entry Certificate in violation of
Section 5.02(b) and/or Section 5.02(c), or if such Person's certification that
it is a Certificate Owner is in direct conflict with information obtained by the
Trustee from the Depository, Depository Participants, and/or indirect
participating brokerage firms for which a Depository Participant acts as agent,
with respect to the identity of a Certificate Owner. The Trustee shall exercise
its reasonable discretion in making any determination under this Section 5.06(b)
and shall afford any Person providing information with respect to its beneficial
ownership of any Certificates an opportunity to resolve any discrepancies
between the information provided and any other information available to the
Trustee.
SECTION 5.07 Regarding the Identification of Certain
Certificateholders.
For purposes of determining the identity of the holders of the
Class F, Class G, Class H, Class J and Class K Certificates to whom certain
reports and other information are required to be delivered hereunder, the
Trustee and the Master Servicer may rely, with respect to any such Certificates
outstanding in book-entry form, on a certification, given to the Trustee and
provided to the Master Servicer, by any Person that such person is such a holder
entitled to receive such reports or information hereunder. From time to time
upon the request of the Master Servicer, the Trustee shall notify the Master
Servicer whether there have been any changes in the identity of such holders
recorded in the Certificate Register.
ARTICLE VI
THE DEPOSITOR, THE MORTGAGE LOAN SELLER, THE MASTER SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01 Liability of the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special
Servicer and the REMIC Administrator.
The Depositor, the Mortgage Loan Seller, the Master Servicer,
the Special Servicer and the REMIC Administrator shall be liable in accordance
herewith only to the extent of the respective obligations specifically imposed
upon and undertaken by the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer and the REMIC Administrator herein.
SECTION 6.02 Merger, Consolidation or Conversion of the
Depositor, the Mortgage Loan Seller, the
Master Servicer, the Special Servicer or the
REMIC Administrator.
Subject to the following paragraph, the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer and the REMIC
Administrator each will keep in full effect its existence, rights and franchises
as a corporation or other business organization under the laws of the
jurisdiction of its organization, and each will obtain and preserve its
qualification to do business as a foreign corporation or otherwise in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
The Depositor, the Mortgage Loan Seller, the Master Servicer,
the Special Servicer and the REMIC Administrator each may be merged or
consolidated with or into any Person, or transfer all or substantially all of
its assets (which, as to the Master Servicer and the Special Servicer, may be
limited to all or substantially all of its assets relating to the business of
mortgage loan servicing) to any Person, in which case any Person resulting from
any merger or consolidation to which the Depositor, the Mortgage Loan Seller,
the Master Servicer, the Special Servicer or the REMIC Administrator shall be a
party, or any Person succeeding to the business of the Depositor, the Mortgage
Loan Seller, the Master Servicer, the Special Servicer or the REMIC
Administrator, shall be the successor of the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer or the REMIC Administrator, as
the case may be, hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that no successor or surviving
Person shall succeed to the rights of the Master Servicer, the Special Servicer,
or the Mortgage Loan Seller unless such succession will not result in any
downgrade, qualification (if applicable) or withdrawal of the rating then
assigned by any Rating Agency to any Class of Certificates (as confirmed in
writing).
SECTION 6.03 Limitation on Liability of the Depositor, the
Master Servicer, the Special Servicer, the REMIC
Administrator and Others.
None of the Depositor, the Master Servicer, the Special
Servicer, the REMIC Administrator or any director, officer, employee or agent of
any of the foregoing shall be under any liability to the Trust or the
Certificateholders for any action taken, or not taken, in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer, the Special
Servicer, the REMIC Administrator or any such other Person against any breach of
a representation or warranty made herein, or against any expense or liability
specifically required to be borne thereby pursuant to the terms hereof, or
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in the performance of obligations or duties
hereunder, or by reason of negligent disregard of such obligations and duties.
The Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and any director, manager, member, officer, employee or agent
(including Sub-Servicers) of any of the foregoing may rely in good faith on any
document of any kind which, prima facie, is properly executed and submitted by
any Person respecting any matters arising hereunder. The Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator and any director,
manager, member, officer, employee or agent (including Sub-Servicers) of any of
the foregoing shall be indemnified and held harmless by the Trust against any
loss, liability or expense incurred in connection with any legal action relating
to this Agreement, the Certificates or any asset of the Trust, other than any
loss, liability or expense: (i) specifically required to be borne by such Person
pursuant to the terms hereof, including, without limitation, Section 10.01(h);
(ii) incidental to the performance of obligations and duties hereunder,
including, without limitation, in the case of the Master Servicer or the Special
Servicer, the prosecution of an enforcement action in respect of any specific
Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement); or (iii) which was
incurred in connection with claims against such party resulting from (A) any
breach of a representation or warranty made herein by such party, (B) willful
misfeasance, bad faith or negligence in the performance of obligations or duties
hereunder by such party, or from negligent disregard of such obligations or
duties, or (C) any violation by such party of any state or federal securities
law. None of the Depositor, the Master Servicer, the Special Servicer or the
REMIC Administrator shall be under any obligation to appear in, prosecute or
defend any legal action unless such action is related to its respective duties
under this Agreement and, except in the case of a legal action contemplated by
Section 3.22, in its opinion does not involve it in any ultimate expense or
liability; provided, however, that the Depositor, the Master Servicer, the
Special Servicer or the REMIC Administrator may in its discretion undertake any
such action which it may deem necessary or desirable with respect to the
enforcement and/or protection of the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action, and any liability resulting therefrom, shall
be expenses, costs and liabilities of the Trust, and the Depositor, the Master
Servicer, the Special Servicer and the REMIC Administrator each shall be
entitled to the direct payment of such expenses or to be reimbursed therefor
from the Certificate Account as provided in Section 3.05(a).
SECTION 6.04 Master Servicer, Special Servicer and REMIC
Administrator Not to Resign.
None of the Master Servicer, the Special Servicer or the REMIC
Administrator shall be permitted to resign from the obligations and duties
hereby imposed on it, except (i) upon the appointment of, and the acceptance of
such appointment by, a successor thereto which is reasonably acceptable to the
Trustee and the receipt by the Trustee of written confirmation from each and
every Rating Agency to the effect that such resignation and appointment will not
result in the downgrade, qualification (if applicable) or withdrawal of any
rating then assigned by such Rating Agency to any Class of Certificates, or (ii)
upon determination that such obligations and duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it, the other activities
of the Master Servicer, Special Servicer or REMIC Administrator, as the case may
be, so causing such a conflict being of a type and nature carried on by the
Master Servicer, Special Servicer or REMIC Administrator, as the case may be, at
the date of this Agreement. Any such determination of the nature described in
clause (ii) of the preceding sentence permitting the resignation of the Master
Servicer, the Special Servicer or the REMIC Administrator, as the case may be,
shall be evidenced by an Opinion of Counsel to such effect which shall be
rendered by Independent counsel, be addressed and delivered to the Trustee and
the Rating Agencies and be paid for by the resigning party. No such resignation
for either reason shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
hereunder. All costs and expenses of the Trustee and the Trust (including,
without limitation, any costs or expenses of any party hereto reimbursable out
of the Trust Fund) in connection with any such resignation (including, without
limitation, any requisite transfer of servicing) shall be paid for, as incurred,
by the resigning party.
Consistent with the foregoing, none of the Master Servicer,
the Special Servicer or the REMIC Administrator shall be permitted, except as
expressly provided herein, to assign or transfer any of its rights, benefits or
privileges hereunder to any other Person, or delegate to or subcontract with, or
authorize or appoint any other Person to perform any of the duties, covenants or
obligations to be performed by it hereunder. If, pursuant to any provision
hereof, the duties of the Master Servicer, the Special Servicer or the REMIC
Administrator are transferred to a successor thereto, then, subject to Section
3.22, the entire amount of compensation payable to the Master Servicer, the
Special Servicer or the REMIC Administrator, as the case may be, pursuant hereto
shall thereafter be payable to such successor.
SECTION 6.05 Rights of the Depositor and the Trustee in
Respect of the Master Servicer, the Special
Servicer and the REMIC Administrator.
The Master Servicer, the Special Servicer and the REMIC
Administrator each shall afford the Depositor and the Trustee, upon reasonable
notice, during normal business hours access to all records maintained by the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, in respect of its rights and obligations hereunder and access to such of
its officers as are responsible for such obligations. Upon reasonable request,
the Master Servicer, the Special Servicer and the REMIC Administrator each shall
furnish the Depositor and the Trustee with its most recent financial statements
and such other information directly related to the servicing of the Mortgage
Loans or to its ability to perform its obligations hereunder as it possesses,
and which it is not prohibited by law or, to the extent applicable, binding
obligations to third parties with respect to confidentiality from disclosing,
regarding its business, affairs, property and condition, financial or otherwise.
The Depositor may, but is not obligated to, enforce the obligations of the
Master Servicer, the Special Servicer and the REMIC Administrator hereunder and
may, but is not obligated to, perform, or cause a designee to perform, any
defaulted obligation of the Master Servicer, the Special Servicer or the REMIC
Administrator hereunder or, in connection with a default thereby, exercise the
rights of the Master Servicer, the Special Servicer or the REMIC Administrator
hereunder; provided, however, that none of the Master Servicer, the Special
Servicer or the REMIC Administrator shall be relieved of any of its obligations
hereunder by virtue of such performance by the Depositor or its designee. The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Master Servicer, the Special Servicer or the REMIC
Administrator and is not obligated to supervise the performance of the Master
Servicer, the Special Servicer or the REMIC Administrator under this Agreement
or otherwise.
ARTICLE VII
DEFAULT
SECTION 7.01 Events of Default.
(a) "Event of Default", wherever used herein, unless the
context otherwise requires, means any one of the following events:
(i) any failure by the Master Servicer to deposit into the
Certificate Account any amount required to be so deposited under this
Agreement which continues unremedied for two Business Days following
the date on which such deposit was first required to be made, or any
failure by the Master Servicer to deposit into, or to remit to the
Trustee for deposit into, the Distribution Account and the Interest
Reserve Account on any Master Servicer Remittance Date, the full amount
of any Master Servicer Remittance Amount and Withheld Amounts,
respectively, required to be so deposited or remitted under this
Agreement on such date; or
(ii) any failure by the Special Servicer to deposit into, or
to remit to the Master Servicer for deposit into, the Certificate
Account or the REO Account any amount required to be so deposited or
remitted under this Agreement which continues unremedied for two
Business Days following the date on which such deposit or remittance
was first required to be made; or
(iii) any failure by the Master Servicer to remit to the
Trustee for deposit into the Distribution Account, on any Master
Servicer Remittance Date, the full amount of P&I Advances required to
be made on such date; or
(iv) any failure by the Master Servicer to timely make any
Servicing Advance required to be made by it pursuant to this Agreement,
which failure continues unremedied for a period of one Business Day
following the date on which notice shall have been given to the Master
Servicer by the Trustee as provided in Section 3.11(e); or
(v) any failure by the Special Servicer to timely make any
Emergency Advance (or timely direct the Master Servicer to make any
Servicing Advance) required to be made by it or the Master Servicer at
its direction pursuant to this Agreement, which failure continues
unremedied for a period of one Business Day following the date on which
notice has been given to the Special Servicer by the Trustee as
provided in Section 3.11(e); or
(vi) any failure on the part of the Master Servicer or the
Special Servicer duly to observe or perform in any material respect any
other of the covenants or agreements thereof contained in this
Agreement, which failure continues unremedied for a period of 30 days
after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Master Servicer or
the Special Servicer, as the case may be, by any other party hereto, or
to the Master Servicer or the Special Servicer, as the case may be,
with a copy to each other party hereto, by the Holders of Certificates
entitled to at least 25% of the Voting Rights; or
(vii) any failure on the part of the REMIC Administrator duly
to observe or perform in any material respect any of the covenants or
agreements thereof contained in this Agreement, which failure continues
unremedied for a period of 30 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have
been given to the REMIC Administrator by any other party hereto, or to
the REMIC Administrator, with a copy to each other party hereto, by the
Holders of Certificates entitled to at least 25% of the Voting Rights;
or
(viii) any breach on the part of the Master Servicer, the
Special Servicer or the REMIC Administrator of any representation or
warranty thereof contained in this Agreement which materially and
adversely affects the interests of any Class of Certificateholders and
which continues unremedied for a period of 30 days after the date on
which notice of such breach, requiring the same to be remedied, shall
have been given to the Master Servicer, the Special Servicer or the
REMIC Administrator, as the case may be, by any other party hereto, or
to the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, with a copy to each other party
hereto, by the Holders of Certificates entitled to at least 25% of the
Voting Rights; or
(ix) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law for the appointment of a conservator, receiver, liquidator,
trustee or similar official in any bankruptcy, insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings,
or for the winding-up or liquidation of its affairs, shall have been
entered against the Master Servicer, the Special Servicer or the REMIC
Administrator and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(x) the Master Servicer, the Special Servicer or the REMIC
Administrator shall consent to the appointment of a conservator,
receiver, liquidator, trustee or similar official in any bankruptcy,
insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceedings of or relating to it or of or relating to all or
substantially all of its property; or
(xi) the Master Servicer, the Special Servicer or the REMIC
Administrator shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend
payment of its obligations, or take any corporate action in furtherance
of the foregoing;
(xii) the Trustee shall have received written notice from
Moody's or DCR that the continuation of the Master Servicer or the
Special Servicer in such capacity would result (or the continuation of
the Master Servicer or the Special Servicer in such capacity has
resulted) in a downgrade, qualification (if applicable) or withdrawal
of any rating then assigned by such Rating Agency to any Class of
Certificates; or
(xiii) S&P shall publish or otherwise announce that the Master
Servicer is not an "acceptable" master servicer, or that the Special
Servicer is not an "acceptable" special servicer, for commercial
mortgage loans.
Each Event of Default listed above as items (iv) through (xiii) shall constitute
an Event of Default only with respect to the relevant party; provided that if a
single entity acts or any two or more Affiliates act as Master Servicer, Special
Servicer and REMIC Administrator, or in any two or more of the foregoing
capacities, an Event of Default in one capacity (other than an event described
in clauses (xii) or (xiii)) will constitute an Event of Default in each such
capacity.
(b) If any Event of Default with respect to the Master
Servicer or the Special Servicer (in either case, for purposes of this Section
7.01(b), the "Defaulting Party") shall occur and be continuing, then, and in
each and every such case, so long as the Event of Default shall not have been
remedied, the Depositor or the Trustee may, and at the written direction of the
Holders of Certificates entitled to at least 51% of the Voting Rights or if the
relevant Event of Default is the one described in clause (xii) of subsection (a)
above, the Trustee shall, terminate, by notice in writing to the Defaulting
Party (with a copy of such notice to each other party hereto), all of the rights
and obligations (subject to Section 3.11, accruing from and after such notice)
of the Defaulting Party under this Agreement and in and to the Mortgage Loans
and the proceeds thereof. From and after the receipt by the Defaulting Party of
such written notice, all authority and power of the Defaulting Party under this
Agreement, whether with respect to the Certificates (other than as a Holder of
any Certificate) or the Mortgage Loans or otherwise, shall pass to and be vested
in the Trustee pursuant to and under this Section, and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
and at the expense of the Defaulting Party, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. The Master Servicer and
the Special Servicer each agree that, if it is terminated pursuant to this
Section 7.01(b), it shall promptly (and in any event no later than ten Business
Days subsequent to its receipt of the notice of termination) provide the Trustee
with all documents and records reasonably requested thereby to enable the
Trustee to assume the Master Servicer's or Special Servicer's, as the case may
be, functions hereunder, and shall cooperate with the Trustee in effecting the
termination of the Master Servicer's or Special Servicer's, as the case may be,
responsibilities and rights hereunder, including, without limitation, the
transfer within two Business Days to the Trustee for administration by it of all
cash amounts which shall at the time be or should have been credited by the
Master Servicer to the Certificate Account, the Distribution Account, any
Servicing Account or any Reserve Account (if it is the Defaulting Party) or by
the Special Servicer to the REO Account, the Certificate Account, any Servicing
Account or any Reserve Account (if it is the Defaulting Party) or thereafter be
received with respect to the Mortgage Loans and any REO Properties (provided,
however, that the Master Servicer and the Special Servicer each shall, if
terminated pursuant to this Section 7.01(b), continue to be obligated for or
entitled to receive all amounts accrued or owing by or to it under this
Agreement on or prior to the date of such termination, whether in respect of
Advances or otherwise, and it and its directors, officers, employees and agents
shall continue to be entitled to the benefits of Section 6.03 notwithstanding
any such termination). All costs and expenses of the Trustee and the Trust
(including, without limitation, any costs and expenses of any party hereto
reimbursable out of the Trust Fund) in connection with the termination of the
Master Servicer or Special Servicer, as applicable, under this Section 7.01(b)
(including, without limitation, the requisite transfer of servicing) shall be
paid for, as incurred, by the Defaulting Party.
(c) If any Event of Default with respect to the REMIC
Administrator shall occur and be continuing, then, and in each and every such
case, so long as the Event of Default shall not have been remedied, the
Depositor or the Trustee may, and at the written direction of the Holders of
Certificates entitled to at least 51% of the Voting Rights, the Trustee (or, if
the Trustee is also the REMIC Administrator, the Master Servicer) shall,
terminate, by notice in writing to the REMIC Administrator (with a copy to each
of the other parties hereto), all of the rights and obligations of the REMIC
Administrator under this Agreement. From and after the receipt by the REMIC
Administrator of such written notice (or if the Trustee is also the REMIC
Administrator, from and after such time as another successor appointed as
contemplated by Section 7.02 accepts such appointment), all authority and power
of the REMIC Administrator under this Agreement shall pass to and be vested in
the Trustee (or such other successor) pursuant to and under this Section, and,
without limitation, the Trustee (or such other successor) is hereby authorized
and empowered to execute and deliver, on behalf of and at the expense of the
REMIC Administrator, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination. The REMIC
Administrator agrees promptly (and in any event no later than ten Business Days
subsequent to its receipt of the notice of the termination) to provide the
Trustee (or, if the Trustee is also the REMIC Administrator, such other
successor appointed as contemplated by Section 7.02) with all documents and
records requested thereby to enable the Trustee (or such other successor) to
assume the REMIC Administrator's functions hereunder, and to cooperate with the
Trustee (or such other successor) in effecting the termination of the REMIC
Administrator's responsibilities and rights hereunder (provided, however, that
the REMIC Administrator shall continue to be obligated for or entitled to
receive all amounts accrued or owing by or to it under this Agreement on or
prior to the date of such termination, and it and its directors, officers,
employees and agents shall continue to be entitled to the benefits of Section
6.03 notwithstanding any such termination).
SECTION 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer, the Special
Servicer or the REMIC Administrator resigns pursuant to clause (ii) of the first
sentence of Section 6.04 or receives a notice of termination pursuant to Section
7.01, the Trustee shall be the successor in all respects to the Master Servicer,
the Special Servicer or (unless it has also been acting as such) the REMIC
Administrator, as the case may be, in its capacity as such under this Agreement
and the transactions set forth or provided for herein and shall be subject to
all the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, by the terms and provisions hereof,
including, without limitation, if the Master Servicer is the resigning or
terminated party, the Master Servicer's obligation to make P&I Advances;
provided that any failure to perform such duties or responsibilities caused by
the Master Servicer's, the Special Servicer's or the REMIC Administrator's, as
the case may be, failure to cooperate or to provide information or monies
required by Section 7.01 shall not be considered a default by the Trustee
hereunder. Neither the Trustee nor any other successor shall be liable for any
of the representations and warranties of the resigning or terminated party or
for any losses incurred by the resigning or terminated party pursuant to Section
3.06 hereunder nor shall the Trustee nor any other successor be required to
purchase any Mortgage Loan hereunder. As compensation therefor, the Trustee
shall be entitled to all fees and other compensation, (subject to Section 3.11)
which the resigning or terminated party would have been entitled to for future
services rendered if the resigning or terminated party had continued to act
hereunder. Notwithstanding the above, the Trustee may, if it shall be unwilling
to so act, or shall, if it is unable to so act, or is not approved by each and
every Rating Agency as an acceptable master servicer or special servicer, as the
case may be, of commercial mortgage loans, or if the Holders of Certificates
entitled to at least 51% of the Voting Rights so request in writing to the
Trustee, or if the REMIC Administrator is the resigning or terminated party and
the Trustee had been acting in such capacity, promptly appoint, or petition a
court of competent jurisdiction to appoint, any established and qualified
institution as the successor to the Master Servicer, the Special Servicer or the
REMIC Administrator, as the case may be, hereunder in the assumption of all or
any part of the responsibilities, duties or liabilities of the Master Servicer,
the Special Servicer or the REMIC Administrator, as the case may be, hereunder;
provided that such appointment does not result in the downgrading, qualification
(if applicable) or withdrawal of any rating then assigned by any Rating Agency
to any Class of Certificates (as evidenced by written confirmation thereof from
each Rating Agency). No appointment of a successor to the Master Servicer, the
Special Servicer or the REMIC Administrator hereunder shall be effective until
the assumption of the successor to such party of all its responsibilities,
duties and liabilities hereunder. Pending appointment of a successor to the
Master Servicer, the Special Servicer or the REMIC Administrator hereunder, the
Trustee shall act in such capacity as hereinabove provided. Subject to Section
3.11 and in connection with any such appointment and assumption described
herein, the Trustee may make such arrangements for the compensation of such
successor out of payments on or in respect of the Mortgage Loans or otherwise as
it and such successor shall agree; provided, however, that no such compensation
shall be in excess of that permitted the resigning or terminated party
hereunder. The Depositor, the Trustee, such successor and each other party
hereto shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession. Any costs and expenses associated
with the transfer of the foregoing functions under this Agreement (other than
the set-up costs of the successor) shall be borne by the predecessor Master
Servicer, Special Servicer or REMIC Administrator, as applicable, and, if not
paid by such predecessor Master Servicer, Special Servicer or REMIC
Administrator within thirty days of its receipt of an invoice therefor, shall be
an expense of the Trust; provided that such predecessor Master Servicer, Special
Servicer or REMIC Administrator shall reimburse the Trust for any such expense
so incurred by the Trust; and provided, further, that the Trustee shall decide
whether and to what extent it is in the best interest of the Certificateholders
to pursue any remedy against any party obligated to make such reimbursement.
SECTION 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer, the Special
Servicer or the REMIC Administrator pursuant to Section 6.04, any termination of
the Master Servicer, the Special Servicer or the REMIC Administrator pursuant to
Section 7.01 or any appointment of a successor to the Master Servicer, the
Special Servicer or the REMIC Administrator pursuant to Section 6.04 or Section
7.02, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the
occurrence of any event which constitutes or, with notice or lapse of time or
both, would constitute an Event of Default and (ii) five days after the Trustee
has actual knowledge, or would be deemed in accordance with Section 8.02(g) to
have notice of the occurrence of such an event, the Trustee shall transmit by
mail to the other non-defaulting parties hereto and all Certificateholders
notice of such occurrence, unless such default shall have been cured.
SECTION 7.04 Waiver of Events of Default.
The Holders entitled to at least 66-2/3% of the Voting Rights
allocated to each of the Classes of Certificates affected by any Event of
Default hereunder may waive such Event of Default, except that prior to any
waiver of an Event of Default arising from a failure to make P&I Advances, the
Trustee shall be reimbursed all amounts which it has advanced. Upon any such
waiver of an Event of Default, such Event of Default shall cease to exist and
shall be deemed to have been remedied for every purpose hereunder. No such
waiver shall extend to any subsequent or other Event of Default or impair any
right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor (provided that
neither the Depositor nor any Affiliate thereof is the party in respect of which
such Event of Default exists) shall be entitled to the same Voting Rights with
respect to the matters described above as they would if any other Person held
such Certificates.
SECTION 7.05 Additional Remedies of Trustee Upon Event
of Default.
During the continuance of any Event of Default, so long as
such Event of Default shall not have been remedied, the Trustee, in addition to
the rights specified in Section 7.01, shall have the right, in its own name and
as trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy, and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
<PAGE>
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of
Default hereunder and after the curing or waiver of all such Events of Default
and defaults which may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement; provided that it is
herein acknowledged and agreed that the Trustee is at all times acting in a
fiduciary capacity with respect to the Certificateholders. If an Event of
Default hereunder occurs and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement and applicable law, and use
the same degree of care and skill in their exercise as a prudent man or the
Trustee would exercise or use under the circumstances in the conduct of his or
its own affairs (whichever standard would be higher). Any permissive right of
the Trustee contained in this Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement (other than the Mortgage
Files, the review of which is specifically governed by the terms of Article II),
shall examine them to determine whether they conform in form to the requirements
of this Agreement. If any such instrument is found not to so conform to the
requirements of this Agreement in a material manner, the Trustee shall take such
action as it deems appropriate to have the instrument corrected. The Trustee
shall not be responsible for, but may assume and rely upon, the accuracy and
content of any resolution, certificate, statement, opinion, report, document,
order or other instrument furnished by the Depositor, the Master Servicer, the
Special Servicer or the REMIC Administrator and accepted by the Trustee in good
faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) The duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement
against the Trustee and, in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Trustee and conforming to
the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of Holders of Certificates
entitled to at least 25% (or, as to any particular matter, any higher
percentage as may be specifically provided for hereunder) of the Voting
Rights relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement.
SECTION 8.02 Certain Matters Affecting the Trustee .
Except as otherwise provided in Section 8.01:
(a) The Trustee may rely upon and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other paper
or document reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(c) The Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or defend
any litigation hereunder or in relation hereto at the request, order or
direction of any of the Certificateholders, pursuant to the provisions of this
Agreement, unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby; the Trustee shall not be required to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it; nothing contained herein shall, however, relieve
the Trustee of the obligation, upon the occurrence of an Event of Default
hereunder which has not been cured, to exercise such of the rights and powers
vested in it by this Agreement and to use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs;
(d) The Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(e) Prior to the occurrence of an Event of Default hereunder,
and after the curing of all such Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing to do so by Holders of Certificates entitled to at
least 25% of the Voting Rights; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such action;
(f) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys-in-fact, provided that the use of any such agent or
attorney-in-fact shall not relieve the Trustee from any of its obligations
hereunder, and the Trustee shall remain responsible for all acts and omissions
of any such agent or attorney-in-fact;
(g) For all purposes under this Agreement, the Trustee shall
not be deemed to have notice of any Event of Default hereunder unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office, and such notice references the
Certificates or this Agreement; and
(h) The Trustee shall not be responsible for any act or
omission of the Master Servicer, the Special Servicer or the REMIC Administrator
(unless the Trustee is acting as Master Servicer, Special Servicer or REMIC
Administrator, as the case may be) or for any act or omission of the Depositor
or the Mortgage Loan Seller.
SECTION 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other
than the representations and warranties of, and the other statements attributed
to, the Trustee in Article II and the certificate of authentication executed by
the Trustee as Certificate Registrar set forth on each outstanding Certificate)
shall be taken as the statements of the Depositor, the Mortgage Loan Seller, the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Agreement (other than as specifically set forth in Sections 2.08 and 2.09) or of
any Certificate (other than as to the signature of the Trustee set forth
thereon) or of any Mortgage Loan or related document. The Trustee shall not be
accountable for the use or application by the Depositor of any of the
Certificates issued to it or of the proceeds of such Certificates, or for the
use or application of any funds paid to the Depositor or the Mortgage Loan
Seller in respect of the assignment of the Mortgage Loans to the Trust, or any
funds deposited in or withdrawn from the Certificate Account, the Interest
Reserve Account or any other account by or on behalf of the Depositor, the
Master Servicer, the Special Servicer or the REMIC Administrator. The Trustee
shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, the Master Servicer, the Special Servicer or the
REMIC Administrator and accepted by the Trustee, in good faith, pursuant to this
Agreement.
SECTION 8.04 Trustee May Own Certificates.
The Trustee, in its individual or any other capacity, and any
agent of the Trustee may become the owner or pledgee of Certificates with,
except as otherwise provided in the definition of Certificateholder, the same
rights it would have if it were not the Trustee or such agent, as the case may
be.
SECTION 8.05 Fees of Trustee; Indemnification of Trustee.
(a) The Trustee shall pay to itself on each Distribution Date,
pursuant to Section 3.05(b)(ii), from amounts on deposit in the Distribution
Account, an amount equal to the Trustee Fee for such Distribution Date and, to
the extent not previously received, for each prior Distribution Date.
(b) The Trustee and any director, officer, employee or agent
of the Trustee shall be entitled to be indemnified and held harmless by the
Trust (to the extent of amounts on deposit in the Certificate Account and the
Distribution Account from time to time) against any loss, liability or expense
(including, without limitation, costs and expenses of litigation, and of
investigation, counsel fees, damages, judgments and amounts paid in settlement)
arising out of, or incurred in connection with, any legal actions relating to
the exercise and performance of any of the powers and duties of the Trustee
hereunder; provided that none of the Trustee or any of the other above specified
Persons shall be entitled to indemnification pursuant to this Section 8.05(b)
for (i) allocable overhead, (ii) expenses or disbursements incurred or made by
or on behalf of the Trustee in the normal course of the Trustee's performing its
routine duties in accordance with any of the provisions hereof, (iii) any
expense or liability specifically required to be borne thereby pursuant to the
terms hereof, or (iv) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of the Trustee's
obligations and duties hereunder, or by reason of negligent disregard of such
obligations or duties, or as may arise from a breach of any representation,
warranty or covenant of the Trustee made herein. The provisions of this Section
8.05(b) shall survive any resignation or removal of the Trustee and appointment
of a successor trustee.
SECTION 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation, a
trust company, a bank or a banking association: (i) organized and doing business
under the laws of the United States of America or any State thereof or the
District of Columbia; (ii) authorized under such laws to exercise trust powers;
(iii) having a combined capital and surplus of at least $50,000,000; (iv)
subject to supervision or examination by federal or state authority; and (v)
whose long-term senior unsecured debt is rated not less than "Aa3" by Moody's,
"A" by DCR and "AA" by S&P (or, in the case of each Rating Agency, such lower
ratings as would not, as confirmed in writing by such Rating Agency, result in a
downgrade, qualification (if applicable) or withdrawal of any of the
then-current ratings assigned by such Rating Agency to the Certificates). If
such corporation, trust company, bank or banking association publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then, for the purposes of this
Section 8.06, the combined capital and surplus of such corporation, trust
company, bank or banking association shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. No
Person shall become a successor trustee hereunder if the succession of such
Person would result in a downgrade, qualification (if applicable) or withdrawal
of any of the ratings then assigned by the Rating Agencies to the Certificates.
In case at any time the Trustee shall cease to be eligible in accordance with
the provisions of this Section, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.07. The corporation, trust
company, bank or banking association serving as Trustee may have normal banking
and trust relationships with the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the REMIC Administrator and their respective
Affiliates.
SECTION 8.07 Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from
the trusts hereby created by giving written notice thereof to the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the REMIC
Administrator and to all Certificateholders. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor trustee acceptable
to the Master Servicer by written instrument, in duplicate, which instrument
shall be delivered to the resigning Trustee and to the successor trustee. A copy
of such instrument shall be delivered to the Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the REMIC Administrator and the
Certificateholders by the Depositor. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Trustee and appoint a successor
trustee acceptable to the Master Servicer by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 33 1/3%
of the Voting Rights may at any time remove the Trustee and appoint a successor
trustee by written instrument or instruments, in triplicate, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Master Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed; provided
that the Master Servicer, the Depositor and the remaining Certificateholders
shall have been notified; and provided further that other Holders of the
Certificates entitled to a greater percentage of the Voting Rights shall not
have objected to such removal in writing to the Master Servicer and the
Depositor within 30 days of their receipt of notice thereof. A copy of such
instrument shall be delivered to the Depositor, the Mortgage Loan Seller, the
Special Servicer, the REMIC Administrator and the remaining Certificateholders
by the Master Servicer.
(d) Any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to any of the provisions of this Section 8.07
shall not become effective until acceptance of appointment by the successor
trustee as provided in Section 8.08; and no such resignation or removal of the
Trustee and/or appointment of a successor trustee shall be permitted, unless, as
confirmed in writing by each Rating Agency, such resignation or removal and
appointment would not result in the downgrade, qualification (if applicable) or
withdrawal of the rating assigned by any Rating Agency to any Class of
Certificates.
SECTION 8.08 Successor Trustee.
(a) Any successor trustee appointed as provided in Section
8.07 shall execute, acknowledge and deliver to the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the REMIC Administrator and
to its predecessor trustee an instrument accepting such appointment hereunder,
and thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The predecessor trustee shall deliver to the successor
trustee all Mortgage Files and related documents and statements held by it
hereunder (other than any Mortgage Files and related documents and statements at
the time held on its behalf by a Custodian, which Custodian shall become the
agent of the successor trustee), and the Depositor, the Mortgage Loan Seller,
the Master Servicer, the Special Servicer, the REMIC Administrator and the
predecessor trustee shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and certainly vest and
confirm in the successor trustee all such rights, powers, duties and
obligations, and to enable the successor trustee to perform its obligations
hereunder. If such predecessor trustee was removed as Trustee under this
Agreement without cause, the cost of any such execution, delivery or action
shall be at the expense of the Trust.
(b) No successor trustee shall accept appointment as provided
in this Section 8.08 unless at the time of such acceptance such successor
trustee shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, the Master Servicer shall mail notice of the
succession of such trustee hereunder to the Depositor and the
Certificateholders. If the Master Servicer fails to mail such notice within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Master
Servicer.
SECTION 8.09 Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted
or with which it may be consolidated or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any entity
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee, hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided that the Trustee shall continue
to be eligible under the provisions of Section 8.06. The successor to the
Trustee shall promptly notify in writing each of the other parties hereto, the
Certificateholders and the Rating Agencies of any such merger, conversion,
consolidation or succession to business.
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing the same may at the time be
located, the Master Servicer and the Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in case an Event of Default in
respect of the Master Servicer shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer, the Special Servicer or the REMIC
Administrator hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under
this Section 8.10 shall not relieve the Trustee of its duties, responsibilities
or liabilities hereunder; provided the Trustee shall have no liability for the
actions or inaction of a separate trustee or co-trustee which do not comply with
the provisions of Section 8.10(b).
SECTION 8.11 Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer,
appoint one or more Custodians to hold all or a portion of the Mortgage Files as
agent for the Trustee; provided that if the Custodian is an Affiliate of the
Trustee such consent of the Master Servicer need not be obtained and the Trustee
shall instead notify the Master Servicer of such appointment. Each Custodian
shall be a depository institution subject to supervision by federal or state
authority, shall have combined capital and surplus (or shall have its
performance guaranteed by an Affiliate with a combined capital and surplus) of
at least $10,000,000, shall be qualified to do business in the jurisdiction in
which it holds any Mortgage File and shall not be the Depositor, the Mortgage
Loan Seller or any Affiliate of any of them. Each Custodian shall be subject to
the same obligations and standard of care as would be imposed on the Trustee
hereunder in connection with the retention of Mortgage Files directly by the
Trustee. The appointment of one or more Custodians shall not relieve the Trustee
from any of its duties, liabilities or obligations hereunder, and the Trustee
shall remain responsible for all acts and omissions of any Custodian. Any such
Custodian (other than the Trustee or an Affiliate of the Trustee) shall maintain
the same errors and omissions insurance as required of the Master Servicer
pursuant to Section 3.07(c).
SECTION 8.12 Access to Certain Information.
(a) The Trustee shall provide or cause to be provided to the
Depositor, the Master Servicer, the Special Servicer and the Rating Agencies,
and to the OTS, the FDIC, and any other federal or state banking or insurance
regulatory authority that may exercise authority over any Certificateholder or
the Participant, access to the Mortgage Files and any other documentation
regarding the Mortgage Loans and the Trust Fund, that is within its control
which may be required by this Agreement or by applicable law. Such access shall
be afforded without charge but only upon reasonable prior written request and
during normal business hours at the offices of the Trustee designated by it.
(b) Promptly following the first sale of any Non-Registered
Certificate to an Independent third party, the Depositor shall provide to the
Trustee 10 copies of any private placement memorandum or other disclosure
document used by the Depositor or its Affiliate in connection with the offer and
sale of the Class of Certificates to which such Non-Registered Certificate
belongs. In addition, if any such private placement memorandum or disclosure
document is revised, amended or supplemented at any time following the delivery
thereof to the Trustee, the Depositor promptly shall inform the Trustee of such
event and shall deliver to the Trustee 10 copies of the private placement
memorandum or disclosure document, as revised, amended or supplemented. The
Trustee shall maintain at its Corporate Trust Office and shall on behalf of the
Depositor, upon reasonable advance written notice, make available during normal
business hours for review by each Rating Agency and by any Certificateholder or
any Certificate Owner or any Person identified to the Trustee by a
Certificateholder or a Certificate Owner as a prospective transferee of a
Certificate or interest therein, originals or copies of the following items: (i)
in the case of a Holder or prospective transferee of a Non-Registered
Certificate, any private placement memorandum or other disclosure document
relating to the Class of Certificates to which such Non-Registered Certificate
belongs, in the form most recently provided to the Trustee; and (ii) in all
cases, (A) all Officer's Certificates delivered to the Trustee since the Closing
Date pursuant to Section 3.13, (B) all accountants' reports delivered to the
Trustee since the Closing Date pursuant to Section 3.14, (C) the most recent
inspection report, together with any related additional written or electronic
information, prepared or obtained by, or on behalf of, the Master Servicer or
Special Servicer, as the case may be, and delivered to the Trustee in respect of
each Mortgaged Property pursuant to Section 3.12(a), (D) all Mortgagor financial
statements and Mortgaged Property operating statements and rent rolls, together
with any related additional written or electronic information, delivered to the
Trustee by the Master Servicer or the Special Servicer pursuant to Section
3.12(b), (E) any and all notices and reports delivered to the Trustee with
respect to any Mortgaged Property securing a defaulted Mortgage Loan as to which
the environmental testing contemplated by Section 3.09(c) revealed that either
of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof was not satisfied or that any remedial, corrective or other further
action contemplated in such clauses is required (but only for so long as such
Mortgaged Property or the related Mortgage Loan is part of the Trust Fund), (F)
all documents constituting the Mortgage Files, including, without limitation,
any and all modifications, waivers and amendments of the terms of a Mortgage
Loan entered into by the Master Servicer or the Special Servicer and delivered
to the Trustee pursuant to Section 3.20 (but, in each case, only for so long as
the related Mortgage Loan is part of the Trust Fund) and (G) any Asset Status
Report. Copies of any and all of the foregoing items are to be available from
the Trustee upon request; however, the Trustee shall be permitted to require
payment of a sum sufficient to cover the reasonable costs and expenses of
providing such service.
In connection with providing access to or copies of the items
described in the immediately preceding paragraph of this Section 8.12(b), the
Trustee may require, unless the Depositor directs otherwise, (i) in the case of
Certificate Owners, a written confirmation executed by the requesting Person, in
form reasonably satisfactory to the Trustee, generally to the effect that such
Person is a beneficial holder of Certificates and will keep such information
confidential and (ii) in the case of any prospective purchaser of a Certificate
or, in the case of a Book-Entry Certificate, of a beneficial ownership interest
therein, a written confirmation executed by the requesting Person, in form
reasonably satisfactory to the Trustee, generally to the effect that such Person
is a prospective purchaser of a Certificate or a beneficial ownership interest
therein, is requesting the information for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. All Certificateholders, by acceptance of their Certificates, shall
be deemed to have agreed to keep such information confidential, except to the
extent that the Depositor grants written permission to the contrary.
Notwithstanding the preceding sentences of this paragraph, the Trustee shall
have no responsibility for the accuracy, completeness or sufficiency of any
information so made available or furnished by it in the manner described in the
immediately preceding paragraph.
SECTION 8.13 Filings with the Securities and Exchange
Commission.
The Trustee shall, at the expense of the Depositor, prepare
for filing, execute and properly file with the Commission, any and all reports,
statements and information, including, without limitation, Distribution Date
Statements, Delinquent Loan Status Reports, REO Status Reports, Historical Loan
Modification Reports, Special Servicer Loan Status Reports, Historical Loss
Reports and Operating Statement Analyses, respecting the Trust Fund and/or the
Certificates required or specifically provided herein to be filed on behalf of
the Trust under the Exchange Act; provided that such items shall have been
received by the Trustee (to the extent not generated by the Trustee) in the
format required for electronic filing via the EDGAR system; and provided,
further, that any such items that are required to be delivered by the Master
Servicer or the Special Servicer to the Trustee shall be so delivered in the
format required (or readily convertible into the format required) for electronic
filing via the EDGAR system (in addition to any other required format). The
Trustee shall have no responsibility to file any such items that have not been
received in such EDGAR-compatible format nor shall it have any responsibility to
convert any items to such format. The Depositor shall promptly file, and
exercise its reasonable best efforts to obtain a favorable response to,
no-action requests to, or requests for other appropriate exemptive relief from,
the Commission regarding the usual and customary exemption from certain
reporting requirements granted to issuers of securities similar to the
Certificates.
SECTION 8.14 Year 2000 Compliance.
The Trustee covenants that by December 31, 1999, any
custom-made software or hardware designed or purchased or licensed by it and
used by it in the course of the operation or management of, or the compiling,
reporting or generation of, data required by this Agreement will be capable of
identifying correctly or performing calculations or other processing accurately
with respect to dates after December 31, 1999.
ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of
All Mortgage Loans.
Subject to Section 9.02, the Trust and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee and
the REMIC Administrator (other than the obligations of the Trustee to provide
for and make payments to Certificateholders as hereafter set forth and the
obligations of the REMIC Administrator to file the final Tax Returns for REMIC I
and REMIC II and to maintain the books and records thereof for a commercially
reasonable period) shall terminate upon payment (or provision for payment) to
the Certificateholders of all amounts held by or on behalf of the Trustee and
required hereunder to be so paid on the Distribution Date following the earlier
to occur of (i) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) of all Mortgage Loans and each REO Property remaining in
REMIC I at a price (to be calculated by the Master Servicer and the Trustee as
of the close of business on the third Business Day preceding the date upon which
notice of any such purchase is furnished to Certificateholders pursuant to the
third paragraph of this Section 9.01 and as if the purchase was to occur on such
Business Day) equal to (A) the aggregate Purchase Price of all the Mortgage
Loans included in REMIC I, plus (B) the appraised value of each REO Property, if
any, included in REMIC I (such appraisal to be conducted by a Qualified
Appraiser selected by the Master Servicer and approved by the Trustee), minus
(C) if such purchase is being made by the Master Servicer, the aggregate amount
of unreimbursed Advances made by the Master Servicer, together with any Advance
Interest payable to the Master Servicer in respect of such Advances and any
unpaid Master Servicing Fees remaining outstanding (which items shall be deemed
to have been paid or reimbursed to the Master Servicer in connection with such
purchase), and (ii) the final payment or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in REMIC I;
provided, however, that in no event shall the trust created hereby continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late ambassador of the United States to
the Court of St. James, living on the date hereof.
The Majority Certificateholder of the Controlling Class (other
than the Depositor or the Mortgage Loan Seller) has the right, and if the
Majority Certificateholder of the Controlling Class fails to exercise such
right, the Master Servicer has the right, to purchase all of the Mortgage Loans
and each REO Property remaining in REMIC I as contemplated by clause (i) of the
preceding paragraph by giving written notice to the other parties hereto no
later than 60 days prior to the anticipated date of purchase; provided, however,
that the Master Servicer and any Majority Certificateholder of the Controlling
Class (other than the Depositor or the Mortgage Loan Seller) each may so elect
to purchase all of the Mortgage Loans and each REO Property remaining in REMIC I
only if the aggregate Stated Principal Balance of the Mortgage Pool at the time
of such election is less than 1.0% of the Initial Pool Balance. In the event
that the Master Servicer or any Majority Certificateholder of the Class (other
than the Depositor or the Mortgage Loan Seller) elects to purchase all of the
Mortgage Loans and each REO Property remaining in REMIC I in accordance with the
preceding sentence, the Master Servicer or such Majority Certificateholder, as
applicable, shall deposit in the Distribution Account not later than the Master
Servicer Remittance Date relating to the Distribution Date on which the final
distribution on the Certificates is to occur, an amount in immediately available
funds equal to the above-described purchase price (exclusive of any portion
thereof payable to any Person other than the Certificateholders pursuant to
Section 3.05(a), which portion shall be deposited in the Certificate Account).
In addition, the Master Servicer shall transfer all amounts required to be
transferred to the Distribution Account on such Master Servicer Remittance Date
from the Certificate Account pursuant to the first paragraph of Section 3.04(b).
Upon confirmation that such final deposits have been made, the Trustee shall
release or cause to be released to the purchaser or its designee, the Mortgage
Files for the remaining Mortgage Loans and shall execute all assignments,
endorsements and other instruments furnished to it by the purchaser, as shall be
necessary to effectuate transfer of the Mortgage Loans and REO Properties
remaining in REMIC I.
Notice of any termination shall be given promptly by the
Trustee by letter to Certificateholders, the Participant and, if not previously
notified pursuant to the preceding paragraph, to the other parties hereto mailed
(a) in the event such notice is given in connection with a purchase by the
Master Servicer or any Majority Certificateholder of the Controlling Class
(other than the Depositor or the Mortgage Loan Seller) of all of the Mortgage
Loans and each REO Property remaining in REMIC I, not earlier than the 15th day
and not later than the 25th day of the month next preceding the month of the
final distribution on the Certificates or (b) otherwise during the month of such
final distribution on or before the 5th day of such month, in each case
specifying (i) the Distribution Date upon which the Trust will terminate and
final payment on the Certificates will be made, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the offices of the Certificate Registrar or
such other location therein designated.
Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the Available
Distribution Amount for such date that is allocable to payments on the relevant
Class in accordance with Section 4.01(b). Final distributions on the REMIC I
Regular Interests shall be made on such date as provided in Section 4.01(a).
Any funds not distributed to any Holder or Holders of
Certificates of any Class on the Final Distribution Date because of the failure
of such Holder or Holders to tender their Certificates shall, on such date, be
set aside and held uninvested in trust and credited to the account or accounts
of the appropriate non-tendering Holder or Holders. If any Certificates as to
which notice has been given pursuant to this Section 9.01 shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate. The
costs and expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If by the second anniversary of the delivery of such
second notice, all of the Certificates shall not have been surrendered for
cancellation, the Class R-II Certificateholders shall be entitled to all
unclaimed funds and other assets which remain subject thereto.
SECTION 9.02 Additional Termination Requirements.
(a) In the event the Master Servicer or a Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) purchases all of the Mortgage Loans and each REO Property
remaining in REMIC I as provided in Section 9.01, the Trust (and, accordingly,
REMIC I and REMIC II) shall be terminated in accordance with the following
additional requirements, unless the Master Servicer or such Majority
Certificateholder, as applicable, obtains at its own expense and delivers to the
Trustee and the REMIC Administrator an Opinion of Counsel, addressed to the
Trustee and the REMIC Administrator, to the effect that the failure of the Trust
to comply with the requirements of this Section 9.02 will not result in the
imposition of taxes on "prohibited transactions" of REMIC I or REMIC II as
defined in Section 860F of the Code or cause REMIC I or REMIC II to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) the REMIC Administrator shall specify the first day in the
90-day liquidation period in a statement attached to the final Tax
Return for each of REMIC I and REMIC II pursuant to Treasury
Regulations Section 1.860F-1;
(ii) during such 90-day liquidation period and at or prior to
the time of making of the final payment on the Certificates, the
Trustee shall sell all of the assets of REMIC I to the Master Servicer
or the Majority Certificateholder of the Controlling Class, as
applicable, for cash; and
(iii) at the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the applicable Class of
Residual Certificates all cash on hand (other than cash retained to
meet claims), and each of REMIC I and REMIC II shall terminate at that
time.
(b) By their acceptance of Certificates, the Holders thereof
hereby agree to authorize the REMIC Administrator to specify the date of
adoption of the plan of complete liquidation of each of REMIC I and REMIC II in
accordance with the terms and conditions of this Agreement, which authorization
shall be binding upon all successor Certificateholders.
ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01 REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC
I and REMIC II as a REMIC under the Code and, if necessary, under Applicable
State Law. Each such election will be made on Form 1066 or other appropriate
federal or state Tax Returns for the taxable year ending on the last day of the
calendar year in which the Certificates are issued.
(b) The REMIC I Regular Interests are hereby designated as the
"regular interests" (within the meaning of Section 860G(a)(1) of the Code), and
the Class R-I Certificates are hereby designated as the sole class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code), in REMIC I.
The Class X, Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J and Class K Certificates are hereby designated as the
"regular interests" (within the meaning of Section 860G(a)(1) of the Code), and
the Class R-II Certificates are hereby designated as the sole Class of "residual
interest" (within the meaning of Section 860G(a)(2) of the Code), in REMIC II.
None of the REMIC Administrator, the Master Servicer, the Special Servicer or
the Trustee shall, to the extent it is within the control of such Person, create
or permit the creation of any other "interests" in either REMIC I or REMIC II
(within the meaning of Treasury Regulations Section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day"
of each of REMIC I and REMIC II within the meaning of Section 860G(a)(9) of the
Code. The "latest possible maturity date", within the meaning of Treasury
Regulations Section 1.860G-1(a)(4)(iii) of the REMIC I Regular Interests and the
REMIC II Regular Certificates is January 20, 2029, the Distribution Date
following the latest maturity date of any Mortgage Loan.
(d) The REMIC Administrator is hereby designated as agent for
the Tax Matters Person of each of REMIC I and REMIC II and shall: act on behalf
of the Trust in relation to any tax matter or controversy, represent the Trust
in any administrative or judicial proceeding relating to an examination or audit
by any governmental taxing authority, request an administrative adjustment as to
any taxable year of REMIC I or REMIC II, enter into settlement agreements with
any governmental taxing agency, extend any statute of limitations relating to
any tax item of REMIC I or REMIC II, and otherwise act on behalf of each of
REMIC I and REMIC II in relation to any tax matter or controversy involving such
REMIC. By their acceptance thereof, the Holders of the Residual Certificates
hereby agree to irrevocably appoint the REMIC Administrator as their agent to
perform all of the duties of the Tax Matters Person for REMIC I and REMIC II.
Subject to Section 10.01(h), the legal expenses and costs of any action
described in this subsection (d) and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust, and the REMIC Administrator shall
be entitled to be reimbursed therefor out of any amounts on deposit in the
Distribution Account as provided by Section 3.05(b).
(e) The REMIC Administrator shall prepare and file, and the
Trustee shall sign, all of the Tax Returns in respect of each of REMIC I and
REMIC II. The expenses of preparing and filing such returns shall be borne by
the REMIC Administrator without any right of reimbursement therefor.
(f) The REMIC Administrator shall perform on behalf of each of
REMIC I and REMIC II all reporting and other tax compliance duties that are the
responsibility of each such REMIC under the Code, the REMIC Provisions or other
compliance guidance issued by the IRS or any other taxing authority under
Applicable State Law. Included among such duties, the REMIC Administrator shall
provide to: (i) any Transferor of a Residual Certificate and the IRS, such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any Person who is a Disqualified
Organization; (ii) the Certificateholders, such information or reports as are
required by the Code or the REMIC Provisions, including, without limitation,
reports relating to interest, original issue discount and market discount or
premium (using the Prepayment Assumption as required); and (iii) the IRS, the
name, title, address and telephone number of the Person who will serve as the
representative of each of REMIC I and REMIC II.
(g) The REMIC Administrator shall perform its duties more
specifically set forth hereunder in a manner consistent with maintaining the
status of each of REMIC I and REMIC II as a REMIC under the REMIC Provisions
(and each of the other parties hereto shall assist it, to the extent reasonably
requested by it). The REMIC Administrator shall not knowingly take (or cause
either REMIC I or REMIC II to take) any action or fail to take (or fail to cause
to be taken) any action within the scope of its duties more specifically set
forth hereunder that, under the REMIC Provisions, if taken or not taken, as the
case may be, could result in an Adverse REMIC Event with respect to either such
REMIC, unless the REMIC Administrator has received an Opinion of Counsel to the
effect that the contemplated action will not result in an Adverse REMIC Event.
None of the other parties hereto shall take any action (whether or not
authorized hereunder) as to which the REMIC Administrator has advised it in
writing that it has received an Opinion of Counsel to the effect that an Adverse
REMIC Event could occur with respect to such action. In addition, prior to
taking any action with respect to REMIC I or REMIC II, or causing REMIC I or
REMIC II to take any action, that is not expressly permitted under the terms of
this Agreement, each of the other parties hereto will consult with the REMIC
Administrator, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur. None of the parties hereto shall take any such
action or cause REMIC I or REMIC II to take any such action as to which the
REMIC Administrator has advised it in writing that an Adverse REMIC Event could
occur. The REMIC Administrator may consult with counsel to make such written
advice, and the cost of same shall be borne: (i) if such action that is not
expressly permitted by this Agreement would be of a material benefit to or
otherwise in the best interests of the Certificateholders as a whole, by the
Trust and shall be paid by the Trustee at the direction of the REMIC
Administrator out of amounts on deposit in the Distribution Account; and (ii)
otherwise by the party seeking to take the action not permitted by this
Agreement.
(h) In the event that any tax is imposed on REMIC I or REMIC
II, including, without limitation, "prohibited transactions" taxes as defined in
Section 860F(a)(2) of the Code, any taxes on contributions to REMIC I or REMIC
II after the Startup Day pursuant to Section 860G(d) of the Code, and any other
tax imposed by the Code or any applicable provisions of state or local tax laws
(other than any tax permitted to be incurred by the Special Servicer pursuant to
Section 3.17(a)), such tax, together with all incidental costs and expenses
(including, without limitation, penalties and reasonable attorneys' fees), shall
be charged to and paid by: (i) the REMIC Administrator, if such tax arises out
of or results from a breach by the REMIC Administrator of any of its obligations
under this Article X; (ii) the Trustee, if such tax arises out of or results
from a breach by the Trustee of any of its obligations under this Article X;
(iii) the Master Servicer, if such tax arises out of or results from a breach by
the Master Servicer of any of its obligations under Article III or this Article
X; (iv) the Special Servicer, if such tax arises out of or results from a breach
by the Special Servicer of any of its obligations under Article III or this
Article X; or (v) the Trust in all other instances. Any tax permitted to be
incurred by the Special Servicer pursuant to Section 3.17(a) shall be charged to
and paid by the Trust. Any such amounts payable by the Trust in respect of taxes
shall be paid by the Trustee at the direction of the REMIC Administrator out of
amounts on deposit in the Distribution Account.
(i) The REMIC Administrator and, to the extent that records
are maintained thereby in the normal course of its business, each of the other
parties hereto shall, for federal income tax purposes, maintain books and
records with respect to each of REMIC I and REMIC II on a calendar year and on
an accrual basis. Such records with respect to REMIC I shall include, for each
Distribution Date, the applicable Uncertificated Principal Balance, REMIC I
Remittance Rate, and each category of distribution on or with respect to the
REMIC I Regular Interests.
(j) Following the Startup Day therefor, the Trustee shall not
accept any contributions of assets to REMIC I or REMIC II unless it shall have
received an Opinion of Counsel (at the expense of the party seeking to cause
such contribution) to the effect that the inclusion of such assets in such REMIC
will not cause: (i) such REMIC to fail to qualify as a REMIC at any time that
any Certificates are outstanding; or (ii) the imposition of any tax on such
REMIC under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(k) None of the REMIC Administrator, the Master Servicer, the
Special Servicer or the Trustee shall consent to or, to the extent it is within
the control of such Person, permit: (i) the sale or disposition of any of the
Mortgage Loans (except in connection with (A) a breach of any representation or
warranty of the Mortgage Loan Seller regarding the Mortgage Loans or as
otherwise provided for in Section 2.03, (B) the foreclosure, default or imminent
default of a Mortgage Loan, including but not limited to, the sale or other
disposition of a Mortgaged Property acquired by deed-in-lieu of foreclosure, (C)
the bankruptcy of REMIC I or REMIC II, or (D) the termination of the Trust
pursuant to Article IX of this Agreement); (ii) the sale or disposition of any
investments in the Certificate Account or the REO Account for gain; or (iii) the
acquisition of any assets for the Trust Fund (other than a Mortgaged Property
acquired through foreclosure, deed-in-lieu of foreclosure or otherwise in
respect of a defaulted Mortgage Loan and other than Permitted Investments
acquired in connection with the investment of funds in the Certificate Account
or the REO Account); in any event unless it has received an Opinion of Counsel
(from and at the expense of the party seeking to cause such sale, disposition,
or acquisition) to the effect that such sale, disposition, or acquisition will
not cause: (x) REMIC I or REMIC II to fail to qualify as a REMIC at any time
that any Certificates are outstanding; or (y) the imposition of any tax on REMIC
I or REMIC II under the REMIC Provisions or other applicable provisions of
federal, state and local law or ordinances.
(l) Except as otherwise permitted by Section 3.17(a), none of
the REMIC Administrator, the Master Servicer, the Special Servicer or the
Trustee shall enter into any arrangement by which REMIC I or REMIC II will
receive a fee or other compensation for services or, to the extent it is within
the control of such Person, permit REMIC I or REMIC II to receive any income
from assets other than "qualified mortgages" as defined in Section 860G(a)(3) of
the Code or "permitted investments" as defined in Section 860G(a)(5) of the
Code. At all times as may be required by the Code, the REMIC Administrator shall
make reasonable efforts to ensure that substantially all of the assets of REMIC
I and REMIC II will consist of "qualified mortgages" as defined in Section
860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
SECTION 10.02 Depositor, Master Servicer, Special Servicer and
Trustee to Cooperate with REMIC Administrator.
(a) The Depositor shall provide or cause to be provided to the
REMIC Administrator, within ten (10) days after the Closing Date, all
information or data that the REMIC Administrator reasonably determines to be
relevant for tax purposes as to the valuations and issue prices of the
Certificates, including, without limitation, the price, yield, prepayment
assumption and projected cash flow of the Certificates.
(b) The Master Servicer, the Special Servicer and the Trustee
shall each furnish such reports, certifications and information, and access to
such books and records maintained thereby, as may relate to the Certificates or
the Trust Fund and as shall be reasonably requested by the REMIC Administrator
in order to enable it to perform its duties hereunder.
SECTION 10.03 Fees of the REMIC Administrator.
In the event the Trustee and the REMIC Administrator are not
the same Person, the Trustee covenants and agrees to pay to the REMIC
Administrator from time to time, and the REMIC Administrator shall be entitled
to, reasonable compensation (as set forth in a written agreement between the
Trustee and the REMIC Administrator) for all services rendered by it in the
exercise and performance of any of the obligations and duties of the REMIC
Administrator hereunder.
SECTION 10.04 Use of Agents.
The REMIC Administrator may execute any of its obligations and
duties hereunder either directly or by or through agents or attorneys-in-fact
consented to by the Trustee, which consent shall not be unreasonably withheld;
provided that the REMIC Administrator shall not be relieved of its liabilities,
duties and obligations hereunder by reason of the use of any such agent or
attorney-in-fact.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment.
(a) This Agreement may be amended from time to time by the
mutual agreement of the parties hereto, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct, modify or
supplement any provision herein which may be defective or may be inconsistent
with any other provision herein, (iii) to add any other provisions with respect
to matters or questions arising hereunder which shall not be inconsistent with
the provisions hereof, (iv) to relax or eliminate any requirement hereunder
imposed by the REMIC Provisions if the REMIC Provisions are amended or clarified
such that any such requirement may be relaxed or eliminated; (v) if such
amendment, as evidenced by an Opinion of Counsel delivered to the Trustee and
the REMIC Administrator, is reasonably necessary to comply with any requirements
imposed by the Code or any successor or amendatory statute or any temporary or
final regulation, revenue ruling, revenue procedure or other written official
announcement or interpretation relating to federal income tax laws or any such
proposed action which, if made effective, would apply retroactively to REMIC I
or REMIC II at least from the effective date of such amendment, or would be
necessary to avoid the occurrence of a prohibited transaction or to reduce the
incidence of any tax that would arise from any actions taken with respect to the
operation of REMIC I or REMIC II; (vi) to modify, add to or eliminate any
provisions of Section 5.02(d)(i), (ii) and (iii); or (vii) for any other
purpose; provided that such amendment (other than any amendment for the specific
purposes described in clauses (v) and (vi) above) shall not, as evidenced by an
Opinion of Counsel obtained by or delivered to the Trustee, adversely affect in
any material respect the interests of any Certificateholder without such
Certificateholder's written consent; and provided further that such amendment
(other than any amendment for any of the specific purposes described in clauses
(i) through (vi) above) shall not result in a downgrade, qualification (if
applicable) or withdrawal of any rating then assigned to any Class of
Certificates by any Rating Agency (as evidenced by written confirmation to such
effect from each Rating Agency obtained by or delivered to the Trustee).
(b) This Agreement may also be amended from time to time by
the mutual agreement of the parties hereto, with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received or advanced on the Mortgage Loans and any REO Properties
which are required to be distributed on any Certificate without the written
consent of the Holder of such Certificate, (ii) adversely affect in any material
respect the interests of the Holders of any Class of Certificates in a manner
other than as described in clause (b)(i) without the written consent of the
Holders of all Certificates of such Class, (iii) modify the provisions of this
Section 11.01 without the written consent of the Holders of all Certificates
then outstanding, or (iv) modify the provisions of Section 3.27 hereof in any
way that adversely affects in any material respect the interests of the
Participant without the written consent of the Participant, which consent shall
be deemed to have been received if the Participant has not responded otherwise
on or prior to the fifteenth Business Day following its receipt of notice of
such proposed amendment. Notwithstanding any other provision of this Agreement,
for purposes of the giving or withholding of consents pursuant to this Section
11.01, Certificates registered in the name of the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer or any of their respective
Affiliates shall be entitled to the same Voting Rights with respect to matters
described above as they would if any other Person held such Certificates. For
purposes of this Section 11.01(b), a Class of Certificates is an "affected
Class" if and only if it would, as the result of any such amendment, experience
any of the effects described in clauses (i), (ii) and (iii) of this Section
11.01(b).
(c) At the direction of the Holders of Certificates entitled
to 100% of the Voting Rights allocated to the affected Classes, and with the
agreement of all of the parties hereto (none of which shall withhold its
agreement unless its obligations hereunder would be materially increased), the
Agreement shall be amended for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates, including
without limitation, (i) to cause such Classes to be restructured, (ii) to create
in connection with any restructuring one or more new classes of Certificates,
which may include, without limitation, one or more classes of Certificates
entitled to payments of principal on a priority basis from collections in
respect of some or all of the Multifamily Loans, (iii) to make in connection
with any such restructuring one or more additional REMIC elections with respect
to the Trust Fund and (iv) to provide for the book-entry registration of any
such existing or newly created classes of Certificates. For purposes of this
Section 11.01(c), a Class of Certificates is an "affected Class" if and only if
it would, as the result of any such amendment, experience any of the effects
described in clauses (i), (ii) and (iii) of Section 11.01(b). Any restructuring
pursuant to this Section 11.01(c) shall require the prior written approval of
each Rating Agency and confirmation of the ratings of each such Class of
Certificates (taking into account such restructuring), including confirmation
that such restructuring will not result in the downgrade, qualification (if
applicable) or withdrawal of the ratings then assigned to the Class G, Class H,
Class J and Class K Certificates.
(d) Notwithstanding any contrary provision of this Agreement,
neither the Trustee nor the REMIC Administrator shall consent to any amendment
to this Agreement unless it shall first have obtained or been furnished with an
Opinion of Counsel to the effect that such amendment or the exercise of any
power granted to any party hereto in accordance with such amendment will not
result in the imposition of a tax on REMIC I or REMIC II pursuant to the REMIC
Provisions or cause REMIC I or REMIC II to fail to qualify as a REMIC at any
time that any Certificates are outstanding.
(e) Promptly after the execution of any such amendment, the
Trustee shall furnish a copy of the amendment to each Certificateholder and the
Participant.
(f) It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe; provided
that such consents shall be in writing.
(g) The Trustee may but shall not be obligated to enter into
any amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
(h) The cost of any Opinion of Counsel to be delivered
pursuant to Section 11.01(a) or (d) shall be borne by the Person seeking the
related amendment, except that if the Trustee requests any amendment of this
Agreement in furtherance of the rights and interests of Certificateholders, the
cost of any Opinion of Counsel required in connection therewith pursuant to
Section 11.01(a) or (d) shall be payable out of the Distribution Account.
SECTION 11.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust on direction by the
Trustee, but only upon direction accompanied by an Opinion of Counsel (the
reasonable cost of which may be paid out of the Distribution Account) to the
effect that such recordation materially and beneficially affects the interests
of the Certificateholders. It is acknowledged that the Trustee has no obligation
to monitor whether such recordation in necessary under this section.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except
as expressly provided for herein) or in any manner otherwise control the
operation and management of the Trust Fund, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and (except in the case of a default by the Trustee)
the Holders of Certificates entitled to at least 25% of the Voting Rights shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this Section 11.03(c), each and every Certificateholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 11.04 Governing Law.
This Agreement and the Certificates shall be construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in said State, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
SECTION 11.05 Notices.
Any communications provided for or permitted hereunder shall
be in writing and, unless otherwise expressly provided herein, shall be deemed
to have been duly given when delivered to: (1) in the case of the Depositor,
NationsLink Funding Corporation, NationsBank Corporate Center, 100 North Tryon
Street, Charlotte, North Carolina 28255 Attention: David A. Gertner, telecopy
number: (704) 386-1094 (with copies to Robert W. Long, Esq., Assistant General
Counsel, BankAmerica Corporation, NationsBank Corporate Center, 100 North Tryon
Street (20th Floor), Charlotte, North Carolina 28255, telecopy number: (704)
386-6453; (2) in the case of the Mortgage Loan Seller, NationsBank, N.A.,
NationsBank Corporate Center, NC1-007-07-01, 100 North Tryon Street, Charlotte,
North Carolina 28255, Attention: David Gertner, telecopy number: (704) 386-1904;
(3) in the case of the Master Servicer and the Special Servicer, Banc One
Mortgage Capital Markets, LLC, 1717 Main Street, 14th Floor, Dallas, Texas
75201, Attention: Edgar L. Smith, II, telecopy number (214) 290-4480, with a
copy to Banc One Mortgage Capital Markets, LLC, 1717 Main Street, 12th Floor,
Dallas, Texas 75201, Attention: Paul G. Smyth, telecopy number (214) 290-4293;
(4) in the case of the Trustee and REMIC Administrator, Norwest Bank Minnesota,
National Association, 11000 Broken Land Parkway, Columbia, Maryland 21044-3562,
Attention: Corporate Trust Services (CMBS), NationsLink Funding Corporation,
Series 1999-1, telecopy number (410) 884-2360; (5) in the case of the Rating
Agencies, (A) Moody's Investors Service, Inc., 99 Church Street, New York, New
York 10007, Attention: Commercial MBS Monitoring Department, telecopy number
(212) 553-0300; (B) Duff & Phelps Credit Rating Co., 55 East Monroe Street,
Suite 38, Chicago, Illinois 60603, Attention: Commercial Mortgage Monitoring
Group, telecopy number (312) 263-2852; and (C) Standard & Poor's Ratings
Services, Inc., 25 Broadway, New York, New York 10004, Attention: Commercial
Mortgage Group Surveillance Manager, telecopy number (212) 412-0539; and (6) in
the case of the Participant, SouthTrust Capital Funding Corporation, Attention:
Lawrence D. Katz, 420 North 20th Street, 9th Floor, Birmingham, Alabama 35203,
telecopy number (205) 254-4147, with a copy to Bradley, Arant, Rose & White LLP,
420 North 20th Street, Suite 2000, Birmingham, Alabama 35203-3208, Attention:
Paul Compton, telecopy number (205) 521-8500, or as to each such Person such
other address as may hereafter be furnished by such Person to the parties hereto
in writing. Any communication required or permitted to be delivered to a
Certificateholder shall be deemed to have been duly given when mailed first
class, postage prepaid, to the address of such Holder as shown in the
Certificate Register.
SECTION 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the parties
hereto, and all such provisions shall inure to the benefit of the
Certificateholders. Except as specifically contemplated by Sections 3.22, 3.24,
3.27, 6.03 and 8.05 and otherwise with respect to the Participant as expressly
provided, no other person, including, without limitation, any Mortgagor, shall
be entitled to any benefit or equitable right, remedy or claim under this
Agreement.
SECTION 11.08 Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.09 Notices to and from Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default hereunder that has
not been cured;
(iii) the resignation or termination of the Master Servicer,
the Special Servicer or the REMIC Administrator and the appointment of
a successor;
(iv) any change in the location of the Distribution Account;
(v) the final payment to any Class of Certificateholders; and
(vi) the repurchase of any Mortgage Loan by the Mortgage Loan
Seller pursuant to Section 2.03.
(b) The Master Servicer shall promptly provide notice to each
Rating Agency with respect to each of the following of which it has actual
knowledge:
(i) the resignation or removal of the Trustee and the
appointment of a successor;
(ii) any change in the location of the Certificate Account;
(iii) any event that would result in the voluntary or
involuntary termination of any insurance of the accounts of the
Trustee;
(iv) any material casualty at or condemnation or eminent
domain proceeding in respect of a Mortgaged Property; and
(v) the vacating by an anchor tenant of a retail Mortgaged
Property.
(c) Each of the Master Servicer and the Special Servicer, as
the case may be, shall furnish to each Rating Agency such information with
respect to the Mortgage Loans as the Rating Agency shall reasonably request and
which the Master Servicer or the Special Servicer, as the case may be, can
reasonably provide.
(d) Each of the Master Servicer and the Special Servicer shall
promptly furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described
in Section 3.13; and
(ii) each of its annual independent public accountants'
servicing reports described in Section 3.14, if any.
In addition, as and to the extent required by Section 3.12(b), each of the
Master Servicer and the Special Servicer shall promptly furnish to each Rating
Agency copies or summaries (in such format as will be acceptable to the Rating
Agency) of any of the written reports (including, without limitation, reports
regarding property inspections) prepared, and any of the quarterly and annual
operating statements, rent rolls and financial statements collected, by it
pursuant to Section 3.12(b).
(e) The Trustee shall promptly furnish each Rating Agency on a
monthly basis, to the extent not made available on the Trustee's Website, copies
of the statements to the Holders of the REMIC II Regular Certificates required
by the first paragraph of Section 4.02(a).
(f) To the extent reasonably possible, all information and
reports delivered or made available to the Rating Agencies, or a Class F, Class
G, Class H, Class J and Class K Certificateholder (if requested by such Holder),
by any of the Trustee, the Master Servicer or the Special Servicer pursuant to
this Section 11.09, shall be so delivered or otherwise made available through an
electronic medium.
(g) Each Rating Agency shall provide to the Trustee, upon its
request, a listing of the then current rating on any Certificate then
outstanding.
(h) The Trustee, the Master Servicer and the Special Servicer,
as applicable, shall furnish to each Rating Agency, with respect to each
Mortgage Loan such information as the Rating Agency shall reasonably request and
which the Trustee, the Master Servicer or the Special Servicer can reasonably
provide in accordance with applicable law and without waiving any
attorney-client privilege relating to such information. The Trustee, the Master
Servicer and the Special Servicer, as applicable, may include any reasonable
disclaimer they deem appropriate with respect to such information.
SECTION 11.10 Requests for Information; Standing Requests.
(a) Any Holder of a Class F, Class G, Class H, Class J or
Class K Certificate shall be entitled to, upon request to the Master Servicer,
receive a copy from the Master Servicer of any notice or report to be delivered
hereunder to the Directing Certificateholder.
(b) For the avoidance of doubt, it is noted that to the extent
that any Rating Agency, or any Holder of a Class F, Class G, Class H, Class J or
Class K Certificate, is stated herein to be entitled to obtain from the Master
Servicer or the Special Servicer, upon request, any particular report or other
item of information obtained or prepared with respect to the Mortgage Loans by
the parties to this Agreement in the course of their performance hereof, such
request by such Person may take the form of a standing request to the Master
Servicer or the Special Servicer, as the case may be, to receive all such
reports or items until further notice.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names
to be signed hereto by their respective officers or representatives thereunto
duly authorized, in each case as of the day and year first above written.
NATIONSLINK FUNDING CORPORATION,
Depositor
By: /s/ James E. Naumann
-----------------------------------
Name: James E. Naumann
Title: Senior Vice President
NATIONSBANK, N.A.,
Mortgage Loan Seller
By: /s/ James E. Naumann
-----------------------------------
Name: James E. Naumann
Title: Senior Vice President
BANC ONE MORTGAGE CAPITAL MARKETS, LLC,
Master Servicer and Special Servicer
By: /s/ Edgar L. Smith
-----------------------------------
Name: Edgar L. Smith, II
Title: Chief Operating Officer
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
Trustee and REMIC Administrator
By: /s/ Leslie A. Gaskill
-----------------------------------
Name: Leslie A. Gaskill
Title: Vice President
<PAGE>
ACKNOWLEDGED AND AGREED WITH RESPECT
TO SECTION 2.01 OF THIS AGREEMENT:
NATIONSBANK COMMERCIAL MORTGAGE OWNER TRUST I
By: Norwest Bank Minnesota, National Association,
its Co-Trustee
By: /s/ Leslie A. Gaskill
-----------------------------------
Name: Leslie A. Gaskill
Title: Vice President
ACKNOWLEDGED AND AGREED WITH RESPECT
TO SECTION 3.27 OF THIS AGREEMENT:
SOUTHTRUST CAPITAL FUNDING CORPORATION
By: /s/ Lawrence D. Katz
-----------------------------------
Name: Lawrence D. Katz
Title: Group Vice President
<PAGE>
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 22nd day of February, 1999, before me, a notary public
in and for said State, personally appeared James E. Naumann known to me to be a
Senior Vice President of NATIONSLINK FUNDING CORPORATION and NATIONSBANK, N.A.,
two of the entities that executed the within instrument, and also known to me to
be the person who executed it on behalf of such entities, and acknowledged to me
that such person executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Cheryl D. Faust
------------------------------
Notary Public
[Notarial Seal]
My Commission Expires: May 19, 2001
<PAGE>
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On the 23rd day of February, 1999, before me, a notary public
in and for said State, personally appeared Edgar L. Smith, II known to me to be
a Chief Operating Officer of BANC ONE MORTGAGE CAPITAL MARKETS, LLC, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Sandra Anderson
------------------------------
Notary Public
[Notarial Seal]
My Commission Expires: October 14, 2000
<PAGE>
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 23rd day of February, 1999, before me, a notary public
in and for said State, personally appeared Leslie A. Gaskill, known to me to be
a Vice President of NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Gail Semple
------------------------------
Notary Public
[Notarial Seal]
My Commission Expires: November 2, 2002
<PAGE>
EXHIBIT A-1
FORM OF CLASS A-1 CERTIFICATE
CLASS A-1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate Principal Balance of
6.042% per annum this Certificate as of the Issue
Date:
$
--------------
Date of Pooling and Servicing
Agreement: February 1, 1999 Class Principal Balance of all
the Class A-1 Certificates as of
Cut-off Date: February 1, 1999 the Issue Date: $198,904,170
Issue Date: February 23, 1999 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
March 22, 1999 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
Banc One Mortgage Capital Markets, LLC Balance"): $1,222,145,439
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
Banc One Mortgage Capital Markets, LLC Association
Mortgage Loan Seller:
NationsBank, N.A.
Certificate No. A-1-___ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, BANC ONE MORTGAGE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 20th day of each month or, if such 20th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
For so long as this Certificate is registered in the name of
Cede & Co., or in such other name as is requested by an authorized
representative of DTC, transfers of interests in this Certificate shall be made
through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator thereunder and the
rights of the Certificateholders thereunder, at any time by the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee and
the REMIC Administrator with the consent of the Holders of Certificates entitled
to at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York that are applicable to agreements
negotiated, made and to be performed in said State, and the obligations, rights
and remedies of the Holder hereof shall be determined in accordance with such
laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Norwest Bank Minnesota, National Association,
as Trustee
By: __________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By: __________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to ___________________________________________________________.
This information is provided by ________________________________________, the
assignee named above, or _________________________________________, as its
agent.
<PAGE>
EXHIBIT A-2
FORM OF CLASS A-2 CERTIFICATE
CLASS A-2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate Principal Balance of
6.316% per annum this Certificate as of the Issue
Date:
$______________
Date of Pooling and Servicing
Agreement: February 1, 1999 Class Principal Balance of all
the Class A-2 Certificates as of
Cut-off Date: February 1, 1999 the Issue Date: $659,653,000
Issue Date: February 23, 1999 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
March 22, 1999 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
Banc One Mortgage Capital Markets, LLC Balance"): $1,222,145,439
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
Banc One Mortgage Capital Markets, LLC Association
Mortgage Loan Seller:
NationsBank, N.A.
Certificate No. A-2-___ CUSIP No. [_______________]
<PAGE>
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, BANC ONE MORTGAGE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 20th day of each month or, if such 20th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
For so long as this Certificate is registered in the name of
Cede & Co., or in such other name as is requested by an authorized
representative of DTC, transfers of interests in this Certificate shall be made
through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator thereunder and the
rights of the Certificateholders thereunder, at any time by the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee and
the REMIC Administrator with the consent of the Holders of Certificates entitled
to at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York that are applicable to agreements
negotiated, made and to be performed in said State, and the obligations, rights
and remedies of the Holder hereof shall be determined in accordance with such
laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Norwest Bank Minnesota, National Association,
as Trustee
By: _________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By: _________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
_________ for the account of _________________________________.
Distributions made by check (such check to be made payable to
_______________________________) and all applicable statements and notices
should be mailed to ___________________________________________________________.
This information is provided by _____________________________,
the assignee named above, or ____________________________________, as its agent.
<PAGE>
EXHIBIT A-3
FORM OF CLASS X CERTIFICATE
CLASS X COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate Notional Amount of
Variable this Certificate as of the Issue
Date:
$______________
Date of Pooling and Servicing
Agreement: February 1, 1999 Class Notional Amount of all the
Class X Certificates as of the
Cut-off Date: February 1, 1999 Issue Date: $1,222,145,439
Issue Date: February 23, 1999 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
March 22, 1999 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
Banc One Mortgage Capital Markets, LLC Balance"): $1,222,145,439
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
Banc One Mortgage Capital Markets, LLC Association
Mortgage Loan Seller:
NationsBank, N.A.
Certificate No. X-__ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, BANC ONE MORTGAGE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS ISSUED ON FEBRUARY 23, 1999, AT AN ISSUE PRICE OF 4.81732%
OF THE INITIAL CLASS X NOTIONAL AMOUNT, INCLUDING ACCRUED INTEREST, AND A STATED
REDEMPTION PRICE AT MATURITY EQUAL TO ALL INTEREST DISTRIBUTIONS HEREON, AND IS
ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX PURPOSES.
ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS
REFLECTING THE PREPAYMENT ASSUMPTION OF ZERO, EXCEPT THAT THE HYPER-AMORTIZATION
LOAN IS ASSUMED TO PAY IN FULL ON ITS ANTICIPATED REPAYMENT DATE: (I) THE AMOUNT
OF OID AS A PERCENTAGE OF THE INITIAL CLASS X NOTIONAL AMOUNT IS APPROXIMATELY
2.60326%; (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED
MONTHLY, IS APPROXIMATELY 9.97%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE
SHORT FIRST ACCRUAL PERIOD (FEBRUARY 23, 1999 TO MARCH 20, 1999), COMPUTED USING
THE EXACT METHOD, AS A PERCENTAGE OF THE INITIAL CLASS X NOTIONAL AMOUNT, IS
APPROXIMATELY 0.03674%.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS
CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Issue Date by the aggregate notional principal balance of all
the Certificates of the same Class as this Certificate (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest in
the Trust Fund evidenced by all the Certificates of the same Class as this
Certificate. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among NationsLink Funding Corporation, as Depositor, and the
Mortgage Loan Seller, Master Servicer, Special Servicer, Trustee and REMIC
Administrator identified above. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 20th day of each month or, if such 20th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
For so long as this Certificate is registered in the name of
Cede & Co., or in such other name as is requested by an authorized
representative of DTC, transfers of interests in this Certificate shall be made
through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, and the REMIC Administrator thereunder and the
rights of the Certificateholders thereunder, at any time by the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee and
the REMIC Administrator with the consent of the Holders of Certificates entitled
to at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York that are applicable to agreements
negotiated, made and to be performed in said State, and the obligations, rights
and remedies of the Holder hereof shall be determined in accordance with such
laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Norwest Bank Minnesota, National Association,
as Trustee
By: _________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By: _________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________________
Signature by or on behalf of Assignor
_____________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
or the account of _______________________________.
Distributions made by check (such check to be made payable to
_______________________________) and all applicable statements and notices
should be mailed to ___________________________________________________________.
This information is provided by _________________________, the
assignee named above, or ______________________________________, as its agent.
<PAGE>
EXHIBIT A-4
FORM OF CLASS B CERTIFICATE
CLASS B COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date:
$______________
Date of Pooling and Servicing
Agreement: February 1, 1999 Class Principal Balance of all
the Class B Certificates as of
Cut-off Date: February 1, 1999 the Issue Date: $64,162,635
Issue Date: February 23, 1999 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
March 22, 1999 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
Banc One Mortgage Capital Markets, LLC Balance"): $1,222,145,439
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
Banc One Mortgage Capital Markets, LLC Association
Mortgage Loan Seller:
NationsBank, N.A.
Certificate No. B-____ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, BANC ONE MORTGAGE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 20th day of each month or, if such 20th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
For so long as this Certificate is registered in the name of
Cede & Co., or in such other name as is requested by an authorized
representative of DTC, transfers of interests in this Certificate shall be made
through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator thereunder and the
rights of the Certificateholders thereunder, at any time by the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee and
the REMIC Administrator with the consent of the Holders of Certificates entitled
to at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York that are applicable to agreements
negotiated, made and to be performed in said State, and the obligations, rights
and remedies of the Holder hereof shall be determined in accordance with such
laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:__________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Trustee
By:__________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________________
Signature by or on behalf of Assignor
_____________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of _______________________________________________.
Distributions made by check (such check to be made payable to
__________________________) and all applicable statements and notices should be
mailed to _____________________________________________________________________.
This information is provided by _____________________________,
the assignee named above, or _______________________________________________, as
its agent.
<PAGE>
EXHIBIT A-5
FORM OF CLASS C CERTIFICATE
CLASS C COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date:
$______________
Date of Pooling and Servicing
Agreement: February 1, 1999 Class Principal Balance of all
the Class C Certificates as of
Cut-off Date: February 1, 1999 the Issue Date: $61,107,271
Issue Date: February 23, 1999 Approximate Aggregate unpaid
principal balance of the
First Distribution Date: Mortgage Pool as of the Cut-off
March 22, 1999 Date, after deducting payments
of principal due on or before
Master Servicer: such date (the "Initial Pool
Banc One Mortgage Capital Markets, LLC Balance"): $1,222,145,439
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
Banc One Mortgage Capital Markets, LLC Association
Mortgage Loan Seller:
NationsBank, N.A.
Certificate No. C-__ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, BANC ONE MORTGAGE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 20th day of each month or, if such 20th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
For so long as this Certificate is registered in the name of
Cede & Co., or in such other name as is requested by an authorized
representative of DTC, transfers of interests in this Certificate shall be made
through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator thereunder and the
rights of the Certificateholders thereunder, at any time by the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee and
the REMIC Administrator with the consent of the Holders of Certificates entitled
to at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York that are applicable to agreements
negotiated, made and to be performed in said State, and the obligations, rights
and remedies of the Holder hereof shall be determined in accordance with such
laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Norwest Bank Minnesota, National Association,
as Trustee
By:__________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Trustee
By:__________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and delivery of such Commercial Mortgage Pass-Through
Certificate to the following address: __________________________________________
________________________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of Assignor
_________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ________________________________________________.
Distributions made by check (such check to be made payable to
____________________________) and all applicable statements and notices should
be mailed to __________________________________________.
This information is provided by ____________________________,
the assignee named above, or _________________________________________, as its
agent.
<PAGE>
EXHIBIT A-6
FORM OF CLASS D CERTIFICATE
CLASS D COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: February 1, 1999 Class D Certificates as of the Issue
Date: $67,217,999
Cut-off Date: February 1, 1999
Issue Date: February 23, 1999 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Cut-off Date, after
March 22, 1999 deducting payments of principal due
on or before such date (the "Initial
Pool Balance"): $1,222,145,439
Master Servicer:
Banc One Mortgage Capital Markets, LLC
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
Banc One Mortgage Capital Markets, LLC Association
Mortgage Loan Seller:
NationsBank, N.A.
Certificate No. D -___ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, BANC ONE MORTGAGE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 20th day of each month or, if such 20th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
For so long as this Certificate is registered in the name of
Cede & Co., or in such other name as is requested by an authorized
representative of DTC, transfers of interests in this Certificate shall be made
throught the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator thereunder and the
rights of the Certificateholders thereunder, at any time by the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee and
the REMIC Administrator with the consent of the Holders of Certificates entitled
to at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York that are applicable to agreements
negotiated, made and to be performed in said State, and the obligations, rights
and remedies of the Holder hereof shall be determined in accordance with such
laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Norwest Bank Minnesota, National Association,
as Trustee
By: _________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By: _________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of Assignor
_________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________.
Distributions made by check (such check to be made payable to
____________________________________________________________) and all applicable
statements and notices should be mailed to ____________________________________.
This information is provided by _____________________________,
the assignee named above, or ___________________________________________, as its
agent.
<PAGE>
EXHIBIT A-7
FORM OF CLASS E CERTIFICATE
CLASS E COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $______________
Date of Pooling and Servicing
Agreement: February 1, 1999 Class Principal Balance of all the
Class E Certificates as of the Issue
Cut-off Date: February 1, 1999 Date: $33,608,999
Issue Date: February 23, 1999 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Cut-off Date, after
March 22, 1999 deducting payments of principal due
on or before such date (the "Initial
Master Servicer: Pool Balance"): $1,222,145,439
Banc One Mortgage Capital Markets, LLC
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
Banc One Mortgage Capital Markets, LLC Association
Mortgage Loan Seller:
NationsBank, N.A.
Certificate No. E-_____ CUSIP No. [_______________]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, BANC ONE MORTGAGE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE IS ISSUED ON FEBRUARY 23, 1999, AND BASED ON ITS ISSUE PRICE OF
93.81587%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE, (PLUS 3 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF ZERO USED TO
PRICE THIS CERTIFICATE, EXCEPT THAT THE HYPER-AMORTIZATION LOAN IS ASSUMED TO
PAY IN FULL ON ITS ANTICIPATED REPAYMENT DATE: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY
6.23944%; (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED
MONTHLY, IS APPROXIMATELY 7.99%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE
SHORT FIRST ACCRUAL PERIOD (FEBRUARY 23, 1999 TO MARCH 20, 1999) COMPUTED USING
THE EXACT METHOD, AS A PERCENTAGE OF THE CLASS X NOTIONAL AMOUNT, IS
APPROXIMATELY 0.06406%.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF OF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 20th day of each month or, if such 20th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
For so long as this Certificate is registered in the name of
Cede & Co., or in such other name as is requested by an authorized
representative of DTC, transfers of interests in this Certificate shall be made
through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator thereunder and the
rights of the Certificateholders thereunder, at any time by the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee and
the REMIC Administrator with the consent of the Holders of Certificates entitled
to at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York that are applicable to agreements
negotiated, made and to be performed in said State, and the obligations, rights
and remedies of the Holder hereof shall be determined in accordance with such
laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Norwest Bank Minnesota, National Association,
as Trustee
By: _________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By: _________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of Assignor
_________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
_____________________________) and all applicable statements and notices should
be mailed to __________________________________________________________________.
This information is provided by ________________________________________, the
assignee named above, or _________________________________________, as its
agent.
<PAGE>
EXHIBIT A-8
FORM OF CLASS F CERTIFICATE
CLASS F COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: February 1, 1999 Class F Certificates as of the Issue
Date: $51,941,181
Cut-off Date: February 1, 1999
Issue Date: February 23, 1999 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Cut-off Date, after
March 22, 1999 deducting payments of principal due
on or before such date (the "Initial
Master Servicer: Pool Balance"): $1,222,145,439
Banc One Mortgage Capital Markets, LLC
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
Banc One Mortgage Capital Markets, LLC Association
Mortgage Loan Seller:
NationsBank, N.A.
Certificate No. F-__ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, BANC ONE MORTGAGE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON FEBRUARY 23, 1999, AND BASED ON ITS ISSUE PRICE OF
78.75412%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE, (PLUS 3 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF ZERO USED TO
PRICE THIS CERTIFICATE, EXCEPT THAT THE HYPER-AMORTIZATION LOAN IS ASSUMED TO
PAY IN FULL ON ITS ANTICIPATED REPAYMENT DATE: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY
21.98344%; (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED
MONTHLY, IS APPROXIMATELY 10.68%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE
SHORT FIRST ACCRUAL PERIOD (FEBRUARY 23, 1999 TO MARCH 20, 1999) COMPUTED USING
THE EXACT METHOD, AS A PERCENTAGE OF THE CLASS X NOTIONAL AMOUNT, IS
APPROXIMATELY 0.12738%.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 20th day of each month or, if such 20th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
For so long as this Certificate is registered in the name of
Cede & Co., or in such other name as is requested by an authorized
representative of DTC, transfers of interests in this Certificate shall be made
through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator thereunder and the
rights of the Certificateholders thereunder, at any time by the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee and
the REMIC Administrator with the consent of the Holders of Certificates entitled
to at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York that are applicable to agreements
negotiated, made and to be performed in said State, and the obligations, rights
and remedies of the Holder hereof shall be determined in accordance with such
laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Norwest Bank Minnesota, National Association,
as Trustee
By: _________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By: _________________________________________
Authorized Officer
<PAGE>
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and delivery of such Commercial Mortgage Pass-Through
Certificate to the following address: __________________________________________
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _______________ for the account of
____________________.
Distributions made by check (such check to be made payable to
_________________) and all applicable statements and notices should be mailed to
_______________________________________________________________________________.
This information is provided by _________________________, the
assignee named above, or _________________________________, as its agent.
<PAGE>
EXHIBIT A-9
FORM OF CLASS G CERTIFICATE
CLASS G COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $______________
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: February 1, 1999 Class G Certificates as of the
Issue Date: $9,166,090
Cut-off Date: February 1, 1999
Approximate Aggregate unpaid
Issue Date: February 23, 1999 principal balance of the Mortgage
Pool as of the Cut-off Date, after
First Distribution Date: deducting payments of principal due
March 22, 1999 on or before such date (the
"Initial Pool Balance"):
Master Servicer: $1,222,145,439
Banc One Mortgage Capital Markets, LLC
Trustee and REMIC Administrator:
Special Servicer: Norwest Bank Minnesota, National
Banc One Mortgage Capital Markets, LLC Association
Mortgage Loan Seller:
NationsBank, N.A.
Certificate No. G-__ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, BANC ONE MORTGAGE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON FEBRUARY 23, 1999, AND BASED ON ITS ISSUE PRICE OF
66.84167%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE, (PLUS 3 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF ZERO USED TO
PRICE THIS CERTIFICATE, EXCEPT THAT THE HYPER-AMORTIZATION LOAN IS ASSUMED TO
PAY IN FULL ON ITS ANTICIPATED REPAYMENT DATE: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY
33.20833%; (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED
MONTHLY, IS APPROXIMATELY 11.68%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE
SHORT FIRST ACCRUAL PERIOD (FEBRUARY 23, 1999 TO MARCH 20, 1999) COMPUTED USING
THE EXACT METHOD, AS A PERCENTAGE OF THE CLASS X NOTIONAL AMOUNT, IS
APPROXIMATELY 0.13541%.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 20th day of each month or, if such 20th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
For so long as this Certificate is registered in the name of
Cede & Co., or in such other name as is requested by an authorized
representative of DTC, transfers of interests in this Certificate shall be made
through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator thereunder and the
rights of the Certificateholders thereunder, at any time by the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee and
the REMIC Administrator with the consent of the Holders of Certificates entitled
to at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York that are applicable to agreements
negotiated, made and to be performed in said State, and the obligations, rights
and remedies of the Holder hereof shall be determined in accordance with such
laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Norwest Bank Minnesota, National Association,
as Trustee
By: _________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By: _________________________________________
Authorized Officer
<PAGE>
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and delivery of such Commercial Mortgage Pass-Through
Certificate to the following address: __________________________________________
________________________________________________________________________________
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________.
Distributions made by check (such check to be made payable to
___________) and all applicable statements and notices should be mailed to
___________________________ for the account of ________________________________.
This information is provided by _______________, the assignee
named above, or _______________________________, as its agent.
<PAGE>
EXHIBIT A-10
FORM OF CLASS H CERTIFICATE
CLASS H COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $______________
Date of Pooling and Servicing
Agreement: February 1, 1999 Class Principal Balance of all the
Class H Certificates as of the
Cut-off Date: February 1, 1999 Issue Date: $30,553,635
Issue Date: February 23, 1999 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Cut-off Date, after
March 22, 1999 deducting payments of principal due
on or before such date (the
Master Servicer: "Initial Pool Balance"):
Banc One Mortgage Capital Markets, LLC $1,222,145,439
Special Servicer: Trustee and REMIC Administrator:
Banc One Mortgage Capital Markets, LLC Norwest Bank Minnesota, National
Association
Mortgage Loan Seller:
NationsBank, N.A.
Certificate No. H-___ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, BANC ONE MORTGAGE CAPITAL MARKETS LLC, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON FEBRUARY 23, 1999, AND BASED ON ITS ISSUE PRICE OF
60.75766%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE, (PLUS 3 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF ZERO USED TO
PRICE THIS CERTIFICATE, EXCEPT THAT THE HYPER-AMORTIZATION LOAN IS ASSUMED TO
PAY IN FULL ON ITS ANTICIPATED REPAYMENT DATE: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY
39.29233%; (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED
MONTHLY, IS APPROXIMATELY 13.11%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE
SHORT FIRST ACCRUAL PERIOD (FEBRUARY 23, 1999 TO MARCH 20, 1999) COMPUTED USING
THE EXACT METHOD, AS A PERCENTAGE OF THE CLASS X NOTIONAL AMOUNT, IS
APPROXIMATELY 0.14699%.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 20th day of each month or, if such 20th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
For so long as this Certificate is registered in the name of
Cede & Co., or in such other name as is requested by an authorized
representative of DTC, transfers of interests in this Certificate shall be made
through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator thereunder and the
rights of the Certificateholders thereunder, at any time by the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee and
the REMIC Administrator with the consent of the Holders of Certificates entitled
to at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York that are applicable to agreements
negotiated, made and to be performed in said State, and the obligations, rights
and remedies of the Holder hereof shall be determined in accordance with such
laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Norwest Bank Minnesota, National Association,
as Trustee
By: _________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By: _________________________________________
Authorized Officer
<PAGE>
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ____________ for the account of
_______________________.
Distributions made by check (such check to be made payable to
____________) and all applicable statements and notices should be mailed to
___________________________ for the account of _____________________________.
This information is provided by ________________________, the
assignee named above, or ________________________________, as its agent.
<PAGE>
EXHIBIT A-11
FORM OF CLASS J CERTIFICATE
CLASS J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $______________
Date of Pooling and Servicing
Agreement: February 1, 1999 Class Principal Balance of all the
Class J Certificates as of the
Cut-off Date: February 1, 1999 Issue Date: $15,276,817
Issue Date: February 23, 1999 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Cut-off Date, after
March 22, 1999 deducting payments of principal due
on or before such date (the
Master Servicer: "Initial Pool Balance"):
Banc One Mortgage Capital Markets, LLC $1,222,145,439
Special Servicer: Trustee and REMIC Administrator:
Banc One Mortgage Capital Markets, LLC Norwest Bank Minnesota, National
Association
Mortgage Loan Seller:
NationsBank, N.A.
Certificate No. J-__ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, BANC ONE MORTGAGE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON FEBRUARY 23, 1999, AND BASED ON ITS ISSUE PRICE OF
54.44467%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE, (PLUS 3 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF ZERO USED TO
PRICE THIS CERTIFICATE, EXCEPT THAT THE HYPER-AMORTIZATION LOAN IS ASSUMED TO
PAY IN FULL ON ITS ANTICIPATED REPAYMENT DATE: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY
45.60533%; (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED
MONTHLY, IS APPROXIMATELY 14.53%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE
SHORT FIRST ACCRUAL PERIOD (FEBRUARY 23, 1999 TO MARCH 20, 1999) COMPUTED USING
THE EXACT METHOD, AS A PERCENTAGE OF THE CLASS X NOTIONAL AMOUNT, IS
APPROXIMATELY 0.14305%.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 20th day of each month or, if such 20th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
For so long as this Certificate is registered in the name of
Cede & Co., or in such other name as is requested by an authorized
representative of DTC, transfers of interests in this Certificate shall be made
through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator thereunder and the
rights of the Certificateholders thereunder, at any time by the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee and
the REMIC Administrator with the consent of the Holders of Certificates entitled
to at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York that are applicable to agreements
negotiated, made and to be performed in said State, and the obligations, rights
and remedies of the Holder hereof shall be determined in accordance with such
laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Norwest Bank Minnesota, National Association,
as Trustee
By: _________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By: _________________________________________
Authorized Officer
<PAGE>
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto____________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and delivery of such Commercial Mortgage Pass-Through
Certificate to the following address: __________________________________________
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________ for the account of
______________________.
Distributions made by check (such check to be made payable to
____________) and all applicable statements and notices should be mailed to
____________.
This information is provided by _____________________________,
the assignee named above, or ____________________________, as its agent.
<PAGE>
EXHIBIT A-12
FORM OF CLASS K CERTIFICATE
CLASS K COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Pass-Through Rate: Certificate Principal Balance of
Variable this Certificate as of the Issue
Date: $______________
Date of Pooling and Servicing
Agreement: February 1, 1999 Class Principal Balance of all the
Class K Certificates as of the
Cut-off Date: February 1, 1999 Issue Date: $30,553,642
Issue Date: February 23, 1999 Approximate Aggregate unpaid
principal balance of the Mortgage
First Distribution Date: Pool as of the Cut-off Date, after
March 22, 1999 deducting payments of principal due
on or before such date (the
Master Servicer: "Initial Pool Balance"):
Banc One Mortgage Capital Markets, LLC $1,222,145,439
Special Servicer: Trustee and REMIC Administrator:
Banc One Mortgage Capital Markets, LLC Norwest Bank Minnesota, National
Association
Mortgage Loan Seller:
NationsBank, N.A.
Certificate No. K-__ CUSIP No. [_______________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, BANC ONE MORTGAGE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
THE ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON FEBRUARY 23, 1999, AND BASED ON ITS ISSUE PRICE OF
24.23167%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY
EQUAL TO ITS INITIAL PRINCIPAL BALANCE, (PLUS 3 DAYS OF INTEREST AT THE
PASS-THROUGH RATE HEREON), IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR
FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN ACCORDANCE
WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF ZERO USED TO
PRICE THIS CERTIFICATE, EXCEPT THAT THE HYPER-AMORTIZATION LOAN IS ASSUMED TO
PAY IN FULL ON ITS ANTICIPATED REPAYMENT DATE: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS APPROXIMATELY
75.81833%; (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE, COMPOUNDED
MONTHLY, IS APPROXIMATELY 26.94%; AND (III) THE AMOUNT OF OID ALLOCABLE TO THE
SHORT FIRST ACCRUAL PERIOD (FEBRUARY 23, 1999 TO MARCH 20, 1999) COMPUTED USING
THE EXACT METHOD, AS A PERCENTAGE OF THE CLASS X NOTIONAL AMOUNT, IS
APPROXIMATELY 0.03909%.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO
ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT
IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Issue Date by the aggregate principal balance of all the Certificates of
the same Class as this Certificate (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest in the Trust Fund
evidenced by all the Certificates of the same Class as this Certificate. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as specified above (the "Agreement"), among
NationsLink Funding Corporation, as Depositor, and the Mortgage Loan Seller,
Master Servicer, Special Servicer, Trustee and REMIC Administrator identified
above. To the extent not defined herein, the capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 20th day of each month or, if such 20th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
For so long as this Certificate is registered in the name of
Cede & Co., or in such other name as is requested by an authorized
representative of DTC, transfers of interests in this Certificate shall be made
through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator thereunder and the
rights of the Certificateholders thereunder, at any time by the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee and
the REMIC Administrator with the consent of the Holders of Certificates entitled
to at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York that are applicable to agreements
negotiated, made and to be performed in said State, and the obligations, rights
and remedies of the Holder hereof shall be determined in accordance with such
laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Norwest Bank Minnesota, National Association,
as Trustee
By: _________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By: _________________________________________
Authorized Officer
<PAGE>
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING PRINCIPAL
INTEREST IN THIS BOOK- AMOUNT OF BOOK-ENTRY NOTATION
DATE ENTRY CERTIFICATE CERTIFICATE MADE BY
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
- ------------ --------------------------- ------------------------ --------------
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and delivery of such Commercial Mortgage Pass-Through
Certificate to the following address: __________________________________________
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ____________ for the account of
____________________.
Distributions made by check (such check to be made payable to
____________) and all applicable statements and notices should be mailed to
___________________________.
This information is provided by ________________________________________, the
assignee named above, or _________________________________________, as its
agent.
<PAGE>
EXHIBIT A-13
FORM OF CLASS R-I CERTIFICATE
CLASS R-I COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Date of Pooling and Servicing Certificate No. R-I-___
Agreement: February 1, 1999
Percentage Interest evidenced by
Cut-off Date: February 1, 1999 this Certificate in the related
Class: ____%
Issue Date: February 23, 1999
Approximate Aggregate unpaid
First Distribution Date: principal balance of the Mortgage
March 22, 1999 Pool as of the Cut-off Date, after
deducting payments of principal due
Master Servicer: on or before such date (the
Banc One Mortgage Capital Markets, LLC "Initial Pool Balance"):
$1,222,145,439
Special Servicer:
Banc One Mortgage Capital Markets, LLC Trustee and REMIC Administrator:
Norwest Bank Minnesota, National
Association
Mortgage Loan Seller:
NationsBank, N.A.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, BANC ONE MORTGAGE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY GOVERNMENTAL PLAN, AS
DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO ANY FEDERAL, STATE OR , LOCAL LAW
WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR
THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR INVESTING THE
ASSETS OF A PLAN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. CONSEQUENTLY, THE
TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX RELATED
TRANSFER RESTRICTIONS AS SET FORTH IN SECTION 5.02 OF THE AGREEMENT. EACH
TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED
THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY IF ANY
PERSON BECOMES THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH
TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE
OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO
HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that [_____________] is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Certificates of the same Class as this Certificate. The Trust Fund was created
and the Certificates were issued pursuant to a Pooling and Servicing Agreement,
dated as specified above (the "Agreement"), among NationsLink Funding
Corporation, as Depositor, and the Mortgage Loan Seller, Master Servicer,
Special Servicer, Trustee and REMIC Administrator identified above. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 20th day of each month or, if such 20th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
upon the first Distribution Date specified above, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, Distribution Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in certain cases, prior to, distributions to Certificateholders, such
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in
this Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the provisions of Section
5.02(d) of the Agreement and, if any purported Transferee shall become a Holder
of this Certificate in violation of the provisions of such Section 5.02(d), to
have irrevocably authorized the Trustee under clause (ii)(A) of such Section
5.02(d) to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) of such Section 5.02(d)
to negotiate the terms of any mandatory disposition and to execute all
instruments of transfer and to do all other things necessary in connection with
any such disposition. Each Person holding or acquiring any Ownership Interest in
this Certificate must be a Permitted Transferee and shall promptly notify the
Master Servicer, the Trustee and the REMIC Administrator of any change or
impending change in its status as a Permitted Transferee. In connection with any
proposed transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in
this Certificate shall agree (x) to require a Transfer Affidavit and Agreement
from any other Person to whom such Person attempts to transfer its Ownership
Interest herein and (y) not to transfer its Ownership Interest herein unless it
provides to the Certificate Registrar a certificate substantially in the form
attached as Exhibit C-2 to the Agreement stating that, among other things, it
has no actual knowledge that such other Person is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not a
Disqualified Organization or a Non-United States Person.
A "Disqualified Organization" is (i) the United States, any
State or political subdivision thereof, any possession of the United States, or
any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for the Federal Home Loan Mortgage Corporation, a majority of
whose board of directors is not selected by such governmental unit), (ii) a
foreign government, any international organization, or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (unless such organization
is subject to the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381 of the Code and (v) any other Person so designated by the REMIC
Administrator based upon an opinion of counsel that the holding of an Ownership
Interest in a Residual Certificate by such Person may cause the Trust Fund or
any Person having an Ownership Interest in any Class of Certificates (other than
such Person) to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms "United States",
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, an
estate whose income is subject to United States federal income tax regardless of
its source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more United
States persons have the authority to control all substantial decisions of the
trust, all within the meaning of Section 7701(a)(30) of the Code.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator thereunder and the
rights of the Certificateholders thereunder, at any time by the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee and
the REMIC Administrator with the consent of the Holders of Certificates entitled
to at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York that are applicable to agreements
negotiated, made and to be performed in said State, and the obligations, rights
and remedies of the Holder hereof shall be determined in accordance with such
laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Norwest Bank Minnesota, National Association,
as Trustee
By: _________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By: _________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and delivery of such Commercial Mortgage Pass-Through
Certificate to the following address: __________________________________________
________________________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of Assignor
_________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _______________ for the account of
____________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to_______________________________________________________________.
This information is provided by ______________, the assignee named above, or
______________________________, as its agent.
<PAGE>
EXHIBIT A-14
FORM OF CLASS R-II CERTIFICATE
CLASS R-II COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1999-1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
NATIONSLINK FUNDING CORPORATION
Date of Pooling and Servicing Certificate No. R-II - __
Agreement: February 1, 1999
Cut-off Date: February 1, 1999 Percentage Interest evidenced by
this Certificate in the related
Issue Date: February 23, 1999 Class: _____%
First Distribution Date: Approximate Aggregate unpaid
March 22, 1999 principal balance of the Mortgage
Pool as of the Cut-off Date, after
Master Servicer: deducting payments of principal due
Banc One Mortgage Capital Markets, LLC on or before such date (the
"Initial Pool Balance"):
Special Servicer: $1,222,145,439
Banc One Mortgage Capital Markets, LLC
Trustee and REMIC Administrator:
Mortgage Loan Seller: Norwest Bank Minnesota, National
NationsBank, N.A. Association
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN NATIONSLINK
FUNDING CORPORATION, NATIONSBANK, N.A., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, BANC ONE MORTGAGE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR ANY GOVERNMENTAL PLAN, AS
DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO ANY FEDERAL, STATE OR , LOCAL LAW
WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR
THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR INVESTING THE
ASSETS OF A PLAN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. CONSEQUENTLY, THE
TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX RELATED
TRANSFER RESTRICTIONS AS SET FORTH IN SECTION 5.02 OF THE AGREEMENT. EACH
TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED
THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY. IF ANY
PERSON BECOMES THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH
TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE
OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO
HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that [___________] is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Certificates of the same Class as this Certificate. The Trust Fund was created
and the Certificates were issued pursuant to a Pooling and Servicing Agreement,
dated as specified above (the "Agreement"), among NationsLink Funding
Corporation, as Depositor, and the Mortgage Loan Seller, Master Servicer,
Special Servicer, Trustee and REMIC Administrator identified above. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 20th day of each month or, if such 20th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
upon the first Distribution Date specified above, to the Person in whose name
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, Distribution Account and,
if established, the REO Account may be made from time to time for purposes other
than, and, in certain cases, prior to, distributions to Certificateholders, such
purposes including the reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans and the payment of interest on such
advances and expenses.
The Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in
this Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the provisions of Section
5.02(d) of the Agreement and, if any purported Transferee shall become a Holder
of this Certificate in violation of the provisions of such Section 5.02(d), to
have irrevocably authorized the Trustee under clause (ii)(A) of such Section
5.02(d) to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) of such Section 5.02(d)
to negotiate the terms of any mandatory disposition and to execute all
instruments of transfer and to do all other things necessary in connection with
any such disposition. Each Person holding or acquiring any Ownership Interest in
this Certificate must be a Permitted Transferee and shall promptly notify the
Master Servicer, the Trustee and the REMIC Administrator of any change or
impending change in its status as a Permitted Transferee. In connection with any
proposed transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in
this Certificate shall agree (x) to require a Transfer Affidavit and Agreement
from any other Person to whom such Person attempts to transfer its Ownership
Interest herein and (y) not to transfer its Ownership Interest herein unless it
provides to the Certificate Registrar a certificate substantially in the form
attached as Exhibit C-2 to the Agreement stating that, among other things, it
has no actual knowledge that such other Person is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not a
Disqualified Organization or a Non-United States Person.
A "Disqualified Organization" is (i) the United States, any
State or political subdivision thereof, any possession of the United States, or
any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for the Federal Home Loan Mortgage Corporation, a majority of
whose board of directors is not selected by such governmental unit), (ii) a
foreign government, any international organization, or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (unless such organization
is subject to the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381 of the Code and (v) any other Person so designated by the REMIC
Administrator based upon an opinion of counsel that the holding of an Ownership
Interest in a Residual Certificate by such Person may cause the Trust Fund or
any Person having an Ownership Interest in any Class of Certificates (other than
such Person) to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms "United States",
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate whose income is subject to United States federal income tax regardless of
its source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more United
States persons have the authority to control all substantial decisions of the
trust, all within the meaning of Section 7701(a)(30) of the Code.
No service charge will be imposed for any registration of
transfer or exchange of Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
Prior to due presentment of this Certificate for registration
of transfer, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer or by any Majority
Certificateholder of the Controlling Class (other than the Depositor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the Initial Pool Balance specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator thereunder and the
rights of the Certificateholders thereunder, at any time by the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee and
the REMIC Administrator with the consent of the Holders of Certificates entitled
to at least 51% of the Voting Rights allocated to the affected Classes. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
as a REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York that are applicable to agreements
negotiated, made and to be performed in said State, and the obligations, rights
and remedies of the Holder hereof shall be determined in accordance with such
laws.
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Norwest Bank Minnesota, National Association,
as Trustee
By: _________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the
within-mentioned Agreement.
Dated:
Norwest Bank Minnesota, National Association,
as Certificate Registrar
By: _________________________________________
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and delivery of such Commercial Mortgage Pass-Through
Certificate to the following address: __________________________________________
________________________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of Assignor
_________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________ for the account
of ___________________.
Distributions made by check (such check to be made payable to
______________________) and all applicable statements and notices should be
mailed to ______________________________.
This information is provided by _____________________, the
assignee named above, or ___________________________, as its agent.
<PAGE>
EXHIBIT B
FORM OF INVESTMENT REPRESENTATION LETTER
Norwest Bank Minnesota, National Association,
Norwest Center, Sixth and Marquette
Minneapolis, Minnesota 55479-0113
NationsLink Funding Corporation
NationsBank Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Re: Transfer of NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1999-1
-------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the
Pooling and Servicing Agreement dated as of February 1, 1999 (the "Pooling and
Servicing Agreement"), by and among NationsLink Funding Corporation, as
Depositor, NationsBank, N.A., as Mortgage Loan Seller, Banc One Mortgage Capital
Markets, LLC, as Master Servicer and as Special Servicer, and Norwest Bank,
National Association, as Trustee on behalf of the holders of NationsLink Funding
Corporation, Commercial Mortgage Pass-Through Certificates, Series 1999-1 (the
"Certificates"), in connection with the transfer by _________________ (the
"Seller") to the undersigned (the "Purchaser") of $_______________ aggregate
Certificate Balance of Class ___ Certificates (the "Certificate"). Capitalized
terms used and not otherwise defined herein shall have the respective meanings
ascribed to such terms in the Pooling and Servicing Agreement.
In connection with such transfer, the Purchaser hereby
represents and warrants to you and the addressees hereof as follows:
1. Check one of the following:*
[ ] The Purchaser is an institutional "accredited
investor" (an entity meeting the requirements of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act of 1933, as amended (the "1933 Act"))
and has such knowledge and experience in financial
and business matters as to be capable of evaluating
the merits and risks of its investment in the
Certificates, and the Purchaser and any accounts for
which it is acting are each able to bear the economic
risk of the Purchaser's or such account's investment.
The Purchaser is acquiring the Certificates purchased
by it for its own account or for one or more accounts
(each of which is an "institutional accredited
investor") as to each of which the Purchaser
exercises sole investment discretion. The Purchaser
hereby undertakes to reimburse the Trust Fund for any
costs incurred by it in connection with this
transfer.
- ------------------
* Purchaser must include one of the following two certifications.
[ ] The Purchaser is a "qualified institutional buyer"
within the meaning of Rule 144A ("Rule 144A")
promulgated under the Securities Act of 1933, as
amended (the "1933 Act") The Purchaser is aware that
the transfer is being made in reliance on Rule 144A,
and the Purchaser has had the opportunity to obtain
the information required to be provided pursuant to
paragraph (d)(4)(i) of Rule 144A.
2. The Purchaser's intention is to acquire the Certificate (a)
for investment for the Purchaser's own account or (b) for resale to (i)
"qualified institutional buyers" in transactions under Rule 144A, and not in any
event with the view to, or for resale in connection with, any distribution
thereof or (ii) to institutional "accredited investors" meeting the requirements
of Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the 1933
Act, pursuant to any other exemption from the registration requirements of the
1933 Act, subject in the case of this clause (ii) to (w) the receipt by the
Certificate Registrar of a letter substantially in the form hereof, (x) the
receipt by the Certificate Registrar of an opinion of counsel acceptable to the
Certificate Registrar that such reoffer, resale, pledge or transfer is in
compliance with the 1933 Act, (y) the receipt by the Certificate Registrar of
such other evidence acceptable to the Certificate Registrar that such reoffer,
resale, pledge or transfer is in compliance with the 1933 Act and other
applicable laws and (z) a written undertaking to reimburse the Trust for any
costs incurred by it in connection with the proposed transfer. The Purchaser
understands that the Certificate (and any subsequent Certificate) has not been
registered under the 1933 Act, by reason of a specified exemption from the
registration provisions of the 1933 Act which depends upon, among other things,
the bona fide nature of the Purchaser's investment intent (or intent to resell
to only certain investors in certain exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the opportunity
to ask questions and receive answers concerning the terms and conditions of the
transactions contemplated by the Private Placement Memorandum.
4. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the 1933 Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold unless it is registered
or qualified thereunder or unless an exemption from such registration or
qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms
and conditions of the Pooling and Servicing Agreement in its capacity as an
owner of a Certificate or Certificates, as the case may be (each, a
"Certificateholder"), in all respects as if it were a signatory thereto. This
undertaking is made for the benefit of the Trust, the Certificate Registrar and
all Certificateholders present and future.
6. The Purchaser will not sell or otherwise transfer any
portion of the Certificate or Certificates, except in compliance with Section
5.02 of the Pooling and Servicing Agreement.
7. Check one of the following:*
[ ] The Purchaser is a U.S. Person (as defined below) and
it has attached hereto an Internal Revenue Service
("IRS") Form W-9 (or successor form).
[ ] The Purchaser is not a U.S. Person and under
applicable law in effect on the date hereof, no taxes
will be required to be withheld by the Trustee (or
its agent) with respect to distributions to be made
on the Certificate. The Purchaser has attached hereto
either (i) a duly executed IRS Form W-8 (or successor
form), which identifies such Purchaser as the
beneficial owner of the Certificate and states that
such Purchaser is not a U.S. Person or (ii) two duly
executed copies of IRS Form 4224 (or successor form),
which identify such Purchaser as the beneficial owner
of the Certificate and state that interest and
original issue discount on the Certificate and
Permitted Investments is, or is expected to be,
effectively connected with a U.S. trade or business.
The Purchaser agrees to provide to the Certificate
Registrar updated IRS Forms W-8 or IRS Forms 4224, as
the case may be, any applicable successor IRS forms,
or such other certifications as the Certificate
Registrar may reasonably request, on or before the
date that any such IRS form or certification expires
or becomes obsolete, or promptly after the occurrence
of any event requiring a change in the most recent
IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United States
for U.S. federal income tax purposes, a corporation, partnership (except to the
extent provided in applicable Treasury regulations) or other entity created or
organized in or under the laws of the United States or any of its political
subdivisions, an estate the income of which is subject to U.S. federal income
taxation regardless of its source or a trust if a court within the United States
is able to exercise primary supervision over the administration of such trust,
and one or more United States fiduciaries have the authority to control all
substantial decisions of such trust (or, to the extent provided in applicable
Treasury regulations, certain trusts in existence on August 20, 1996 which were
eligible to elect to be treated as U.S. persons).
- ------------------
* Each Purchaser must include one of the two alternative certifications.
8. Please make all payments due on the Certificates:**
[ ] (a) by wire transfer to the following account at
a bank or entity in New York, New York,
having appropriate facilities therefor:
Bank: _________________________________
ABA#: _________________________________
Account #: _________________________________
Attention: _________________________________
[ ] (b) by mailing a check or draft to the following
address:
____________________________________________
____________________________________________
____________________________________________
- ----------------------
** Only to be filled out by Purchaser of Definitive Certificates. Please
select (a) or (b). For holders of Definitive Certificates, wire
transfers are only available if such holder's Definitive Certificates
have an aggregate Certificate Balance or Notional Amount, as
applicable, of at least U.S. $5,000,000.
Very truly yours,
______________________________________
[The Purchaser]
By: _________________________________
Name:
Title:
Dated:
<PAGE>
EXHIBIT C-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
PURSUANT TO SECTION 5.02(d)(i)(B)
STATE OF )
) participation.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says
that:
1. He/She is the [Title of Officer] of [Name of Prospective
Transferee] (the prospective transferee (the "Transferee") of a NationsLink
Funding Corporation Class, R-[I] [II] Commercial Mortgage Pass-Through
Certificate, Series 1999-1, evidencing a ____% Percentage Interest in the Class
to which it belongs (the "Residual Certificate")), a
__________________________________ duly organized and validly existing under the
laws of [the State of ____] [the United States], on behalf of which he/she makes
this affidavit. Capitalized terms used but not defined herein have the
respective meanings assigned thereto in the Pooling and Servicing Agreement
pursuant to which the Residual Certificate was issued (the "Pooling and
Servicing Agreement").
2. The Transferee (i) is [and, as of [date of transfer], will
be] a "Permitted Transferee" and will endeavor to remain a "Permitted
Transferee" for so long as it holds the Residual Certificate, and (ii) is
acquiring the Residual Certificate for its own account or for the account of
another prospective transferee from which it has received an affidavit in
substantially the same form as this affidavit. A "Permitted Tr+ansferee" is any
person other than a "disqualified organization" or a "non-United States person".
(For this purpose: (i) a "disqualified organization" means the United States or
a possession thereof, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality, all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax (unless such organization is subject to the tax on unrelated business
taxable income); and (ii) a "non-United States person" is any person other than
a "United States person". A "United States person" is a citizen or resident of
the United States, a corporation, partnership or other entity created or
organized in, or under the laws of, the United States or any political
subdivision thereof, or an estate whose income is subject to United States
federal income tax regardless of its source, or a trust if a court within the
United States is able to exercise primary supervision over the administration of
the trust and one or more United States persons have the authority to control
all substantial decisions of the trust, all within the meaning of Section
7701(a)(30) of the Code.)
3. The Transferee is aware (i) of the tax that would be
imposed on transfers of the Residual Certificate to "disqualified organizations"
under the Internal Revenue Code of 1986, as amended; (ii) that such tax would be
imposed on the transferor, or, if such transfer is through an agent (which
person includes a broker, nominee or middleman) for a "disqualified
organization", on the agent; (iii) that the person otherwise liable for the tax
shall be relieved of liability for the tax if the transferee furnishes to such
person an affidavit that the transferee is not a "disqualified organization"
and, at the time of transfer, such person does not have actual knowledge that
the affidavit is false; and (iv) that the Residual Certificate may be a
"non-economic residual interest" within the meaning of Treasury Regulation
ss.1.860E-1(c) and that the transferor of a "non-economic residual interest"
will remain liable for any taxes due with respect to the income on such residual
interest, unless no significant purpose of the transfer is to enable the
transferor to impede the assessment or collection of tax.
4. The Transferee is aware of the tax imposed on a
"pass-through entity" holding the Residual Certificate if at any time during the
taxable year of the pass-through entity a "disqualified organization" is the
record holder of an interest in such entity. (For this purpose, a "pass-through
entity" includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will
not register any transfer of the Residual Certificate by the Transferee unless
the Transferee's transferee, or such transferee's agent, delivers to the
Certificate Registrar, among other things, an affidavit and agreement in
substantially the same form as this affidavit and agreement. The Transferee
expressly agrees that it will not consummate any such transfer if it knows or
believes that any representation contained in such affidavit and agreement is
false.
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is
______________.
8. The Transferee has reviewed the provisions of Section
5.02(d) of the Pooling and Servicing Agreement, a description of which
provisions is set forth in the Residual Certificate (in particular, clause (ii)
of Section 5.02(d) which authorizes the Trustee to deliver payments on the
Residual Certificate to a person other than the Transferee, in the event that
the Transferee holds such Residual Certificate in violation of Section 5.02(d)),
and the Transferee expressly agrees to be bound by and to comply with such
provisions.
9. No purpose of the Transferee relating to its purchase or
any sale of the Residual Certificate is or will be to impede the assessment or
collection of any tax.
10. The Transferee hereby represents to and for the benefit of
the transferor that the Transferee intends to pay any taxes associated with
holding the Residual Certificate as they become due, fully understanding that it
may incur tax liabilities in excess of any cash flows generated by the Residual
Certificate.
11. The Transferee will, in connection with any transfer that
it makes of the Residual Certificate, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit C-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Residual Certificate to impede the
assessment or collection of any tax and that it has at the time of such transfer
conducted a reasonable investigation of the financial condition of the proposed
transferee as contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and
has satisfied the requirements of such provision.
<PAGE>
IN WITNESS WHEREOF, the Transferee has caused this instrument
to be executed on its behalf, pursuant to the authority of its Board of
Directors, by its [Title of Officer] and its corporate seal to be hereunto
attached, attested by its [Assistant] Secretary, this ___ day of __________,
199__.
[NAME OF TRANSFEREE]
By: --------------------
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
- ------------------------------
[Assistant] Secretary
Personally appeared before me the above-named [Name of
Officer], known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Transferee, and acknowledged
to me that he/she executed the same as his/her free act and deed and the free
act and deed of the Transferee
Subscribed and sworn before me this ___ day of ______________,
199__.
-------------------------
NOTARY PUBLIC
COUNTY OF ___________
STATE OF _____________
My Commission expires the _________
day of _____________, 19__.
<PAGE>
EXHIBIT C-2
FORM OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(d)(i)(D)
__________________, 19___
Norwest Bank Minnesota, National Association
Norwest Center, Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: NationsLink Funding Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1999-1,
Class R-[I] [II], evidencing a __% percentage
interest in the Class to which it belongs
Dear Sirs:
This letter is delivered to you in connection with the
transfer by _____________ (the "Transferor") to ____________________ (the
"Transferee") of the captioned Class R-[I] [II] Certificate (the "Residual
Certificate"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of February 1, 1999, among
NationsLink Funding Corporation, as Depositor, NationsBank, N.A., as Mortgage
Loan Seller, Banc One Mortgage Capital Markets, LLC, as Master Servicer and as
Special Servicer, and Norwest Bank Minnesota, National Association, as Trustee
and REMIC Administrator. All terms used herein and not otherwise defined shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferor hereby represents and warrants to you, as Certificate Registrar,
that:
1. No purpose of the Transferor relating to the transfer of
the Residual Certificate by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has
delivered to you a Transfer Affidavit and Agreement in the form attached to the
Pooling and Servicing Agreement as Exhibit C-1. The Transferor does not know or
believe that any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Certificate may not be respected for United States federal income
tax purposes (and the Transferor may continue to be liable for United States
federal income taxes associated therewith) unless the Transferor has conducted
such an investigation.
Very truly yours,
-----------------------------------
(Transferor)
By: ______________________________
Name: ________________________
Title: _______________________
<PAGE>
EXHIBIT D
REQUEST FOR RELEASE
____________________, 19___
Norwest Bank Minnesota, National Association
1031 E. 10th Avenue S.E.
Minneapolis, Minnesota 55414
Attention: Mortgage Document Custody (CMBS)
In connection with the administration of the Mortgage Files
held by or on behalf of you as Trustee under that certain Pooling and Servicing
Agreement dated as of February 1, 1999 (the "Pooling and Servicing Agreement"),
by and among NationsLink Funding Corporation, as Depositor, NationsBank, N.A.,
as Mortgage Loan Seller, Banc One Mortgage Capital Markets, LLC, as Master
Servicer and as Special Servicer, and you, as Trustee and REMIC Administrator,
the undersigned hereby requests a release of the Mortgage File (or the portion
thereof specified below) held by or on behalf of you as Trustee with respect to
the following described Mortgage Loan for the reason indicated below.
Property Name: ___________________________________________
Address:__________________________________________________
Loan No.:_________________________________________________
If only particular documents in the Mortgage File are requested, please specify
which:__________________________________________________________________________
Reason for requesting file (or portion thereof):
______ 1. Mortgage Loan paid in full. The undersigned hereby certifies that
all amounts received in connection with the Mortgage Loan that are
required to be credited to the Certificate Account pursuant to the
Pooling and Servicing Agreement, have been or will be so credited.
______ 2. The Mortgage Loan is being foreclosed.
______ 3. Other. (Describe)
<PAGE>
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently, or unless the Mortgage Loan
is being foreclosed, in which case the Mortgage File (or such portion thereof)
will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
BANC ONE MORTGAGE CAPITAL MARKETS, LLC.
By:____________________________________
Name:______________________________
Title:_____________________________
<PAGE>
EXHIBIT E
FORM OF REO STATUS REPORT
<PAGE>
REO STATUS REPORT
<TABLE>
<CAPTION>
- ------------ --------- -------- ------ ------ -------- ------ ---------- ----------- ----------- ---------- --------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Prospectus Property Property City State Sq Ft Paid Ending Total P&I Total Other Total Current
ID Name Type or Thru Scheduled Advances Expenses Advances Exposure Monthly
Units Date Balance to Date to Date (Taxes & P&I
Insurance)
- ------------ --------- -------- ------ ------ -------- ------ ---------- ----------- ----------- ---------- --------- -----------
</TABLE>
- -------- ------ ------ ------- ---------- --------
Maturity LTM LTM LTM Cap Rate Valuation/
Date NOI NOI DSCR Assigned Appraisal
Date *** Date
- -------- ------ ------ ------- ---------- --------
<PAGE>
REO STATUS REPORT
<TABLE>
<CAPTION>
- ------------ --------- -------- ------ ---------- --------------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Prospectus Property Property City Value Appraisal / Loss Estimated Total
ID Name Type using BPO or Using 92% Recovery % Appraisal
NOI & Internal Value Appraisal Reduction
Cap Rate or BPO Realized
- ------------ --------- -------- ------ ---------- --------------- ----------- ----------- -----------
</TABLE>
- --------- ---------- ----------- --------------------------------------------
Special REO Pending Comments
Servicing Acquisition Resolution
Transfer Date Date
Date
- --------- ---------- ----------- --------------------------------------------
<PAGE>
EXHIBIT F
FORM OF ERISA REPRESENTATION LETTER
Norwest Bank Minnesota, National Association
Norwest Center, Sixth and Marquette
Minneapolis, Minnesota 55479-0113
Attention:
NationsLink Funding Corporation
100 North Tryon Street
Charlotte, North Carolina 28255
Attention:
Re: Transfer of NationsLink Funding Corporation,
Commercial Mortgage Pass-Through Certificates,
Series 1999-1
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase
$____________ initial Certificate Balance of NationsLink Funding Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1999-1, Class __ (the
"Certificate") issued pursuant to that certain Second Amended and Restated
Pooling and Servicing Agreement, dated as of February 1, 1999 (the "Pooling and
Servicing Agreement"), by and among NationsLink Funding Corporation, as
depositor (the "Depositor"), NationsBank, N.A., as mortgage loan seller, Banc
One Mortgage Capital Markets, LLC, as master servicer (the "Master Servicer")
and as special servicer (the "Special Servicer") and Norwest Bank Minnesota,
National Association, as trustee (the "Trustee"). Capitalized terms used and not
otherwise defined herein have the respective meanings ascribed to such terms in
the Pooling and Servicing Agreement.
In connection with such transfer, the undersigned hereby
represents and warrants to you as follows:
1. The Purchaser is not (a) an employee benefit plan subject
to the fiduciary responsibility provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code"), or a governmental plan (as
defined in Section 3(32) of ERISA) subject to any federal, state or local law
("Similar Law") which is, to a material extent, similar to the foregoing
provisions of ERISA or the Code (each a "Plan") or (b) a person acting on behalf
of or using the assets of any such Plan (including an entity whose underlying
assets include Plan assets by reason of investment in the entity by any such
Plan and the application of Department of Labor Regulation ss. 2510.3-101),
other than an insurance company using the assets of its general account under
circumstances whereby the purchase and holding of Offered Private Certificates
by such insurance company would be exempt from the prohibited transaction
provisions of ERISA and the Code under Prohibited Transaction Class Exemption
95-60.
2. The Purchaser understands that if the Purchaser is a Person
referred to in 1(a) or (b) above, such Purchaser is required to provide to the
Certificate Registrar an opinion of counsel in form and substance satisfactory
to the Certificate Registrar and the Depositor to the effect that the
acquisition and holding of such Certificate by such purchaser or transferee will
not result in the assets of the Trust Fund being deemed to be "plan assets" and
subject to the fiduciary responsibility provisions of ERISA, the prohibited
transaction provisions of the Code or the provisions of any Similar Law (without
regard to the identity or nature of the other Holders of Certificates of any
Class), will not constitute or result in a "prohibited transaction" within the
meaning of ERISA, Section 4975 of the Code or any Similar Law, and will not
subject the Trustee, the Certificate Registrar, the Master Servicer, the Special
Servicer, the Placement Agents or the Depositor to any obligation or liability
(including obligations or liabilities under ERISA, Section 4975 of the Code or
any such Similar Law) in addition to those set forth in the Pooling and
Servicing Agreement, which Opinion of Counsel shall not be at the expense of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Underwriter, the Placement Agent, the Certificate Registrar or the Trust Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___th day of _____, ____.
Very truly yours,
---------------------------------------
[The Purchaser]
By: _________________________________
Name:
Title:
<PAGE>
EXHIBIT G
FORM OF CERTIFICATEHOLDER CONFIRMATION CERTIFICATE
REQUEST BY BENEFICIAL HOLDER
[Date]
Norwest Bank Minnesota, National Association
Three New York Plaza
New York, New York 10004
Attention: Corporate Trust Services (CMBS)
Re: NationsLink Funding Corporation, Series 1999-1
In accordance with the Pooling and Servicing Agreement dated
as of February 1, 1999 (the "Pooling and Servicing Agreement"), among
NationsLink Funding Corporation ("the "Depositor"), NationsBank, N.A. as
mortgage loan seller, Banc One Mortgage Capital Markets, LLC, as Master Servicer
and as Special Servicer and Norwest Bank Minnesota, National Association as
trustee (in such capacity, the "Trustee"), with respect to the NationsLink
Funding Corporation, Commercial Mortgage Pass-Through Certificates, Series
1999-1 (the "Certificates"), the undersigned hereby certifies and agrees as
follows:
1. The undersigned is a beneficial owner of the Class ____
Certificates.
2. The undersigned is requesting the information identified
on the schedule attached hereto pursuant to the Pooling
and Servicing Agreement (the "Information").
3. In consideration of the Trustee's disclosure to the
undersigned of the Information, the undersigned will keep
the Information confidential (except from such outside
persons as are assisting it in making the evaluation
described in paragraph 2), and such Information will not,
without the prior written consent of the Trustee, be
disclosed by the undersigned or by its officers,
directors, partners employees, agents or representatives
(collectively, the "Representative") in any manner
whatsoever, in whole or in part; provided that the
undersigned may provide all or any part of the
Information to any other person or entity that holds or
is contemplating the purchase of any Certificate or
interest therein, but only if such person or entity
confirms in writing such ownership interest or
prospective ownership interest and agrees to keep it
confidential; and provided further, that the undersigned
may provide all or any part of the Information to its
regulators and auditors.
4. the undersigned will not use or disclose the Information
in any manner which could result in a violation of any
provision of the Securities Act of 1933, as amended, (the
"Securities Act"), or the Securities Exchange Act of
1934, as amended, or would require registration of any
Certificate pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of
this agreement by itself or any of its Representatives
and shall indemnify the Depositor, expense incurred
thereby with respect to any such breach by the
undersigned or any of its Representatives.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by this duly authorized officer, as of the day and year written above.
[BENEFICIAL HOLDER OF A CERTIFICATE]
By: _______________________________
Name:
Title:
<PAGE>
EXHIBIT H
FORM OF PROSPECTIVE PURCHASER CERTIFICATE
[Date]
[TRUSTEE]
Re: NationsLink Funding Corporation, Mortgage Pass-Through
Certificates, Series 1999-1 ("the Certificates").
In accordance with the Pooling and Servicing Agreement dated,
as of February 1, 1999 ( the "Pooling and Servicing Agreement"), among
NationsLink Funding Corporation ("the "Depositor"), NationsBank, N.A. as
mortgage loan seller, Banc One Mortgage Capital Markets, LLC as Master Servicer
and as Special Servicer, and Norwest Bank Minnesota, National Association as
trustee (in such capacity, the "Trustee"), with respect to the NationsLink
Funding Corporation Commercial Mortgage Pass-Through Certificates, Series 1999-1
(the "Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is contemplating an investment in the
Class ___ Certificates.
2. The undersigned is requesting the information identified
on the schedule attached hereto pursuant to Section 3.15
of the Pooling and Servicing Agreement (the
"Information") for use in evaluating such possible
investment.
3. In consideration of the Trustee's disclosure to the
undersigned of the Information, the undersigned will keep
the Information confidential (except from such outside
persons as are assisting it in making the investment
decision described in paragraphs 1 and 2), and such
Information will not, without the prior written consent
of the Trustee, be disclosed by the undersigned or by its
officers, directors, partners employees, agents or
representatives (collectively, the "Representatives") in
any manner whatsoever, in whole or in part; and provided
further, that the undersigned may provide all or any part
of the Information to its regulators and auditors.
4. The undersigned will not use or disclose the Information
in any manner which could result in a violation of any
provisions of the Securities Act of 1933, as amended (the
"Securities Act"), or the Securities Exchange Act of
1934, as amended, or would require registration of any
Certificate pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of
this agreement by itself or any of its representatives
and shall indemnify the Depositor, the Trustee and the
Trust for any loss, liability or expense incurred thereby
with respect to any such breach by the undersigned or any
of its Representatives.
IN WITNESS WHEREOF, the undersigned has caused its name to be
signed hereto by its duly authorized officer, as of the day and year written
above.
[PROSPECTIVE PURCHASER]
By: _____________________
Name:
Title:
<PAGE>
EXHIBIT I
FORM OF INTERIM CUSTODIAL CERTIFICATION
[Date]
NationsLink Funding Corporation,
as Depositor
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: David A. Gertner
NationsBank, N.A.,
as Mortgage Loan Seller
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: David A. Gertner
Banc One Mortgage Capital Markets, LLC,
as Master Servicer and Special Servicer
1717 Main Street, 12th Floor
Dallas, Texas 75201
Attention: Paul G. Smyth
Re: Pooling and Servicing Agreement dated as of February 1, 1999
(the "Agreement") among NationsLink Funding Corporation, as
Depositor, Nationsbank, N.A., as Mortgage Loan Seller, Banc
One Mortgage Capital Markets, LLC, as Master Servicer and
Special Servicer, and Norwest Bank Minnesota, National
Association, as Trustee and REMIC Administrator for the
Certificateholders of Commercial Mortgage Pass Through
Certificates, Series 1999-1
Ladies and Gentlemen:
Pursuant to Section 2.02 of the above referenced Agreement,
the Trustee hereby certifies as to each Mortgage Loan listed on the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full), and except as
specifically identified in the exception report annexed hereto, (i) all
documents specified in clauses (i) through (iii), (ix) and, if the Mortgage Loan
Schedule specifies that the related Mortgagor has a leasehold interest in the
related Mortgaged Property, (xiii) of the definition of "Mortgage File" are in
its possession or the possession of a Custodian on its behalf, or the Mortgage
Loan Seller has otherwise satisfied the delivery requirements in respect of such
documents in accordance with Section 2.01(c), (ii) all documents received by it
or any Custodian in respect of such Mortgage Loan have been reviewed by it or by
a Custodian on its behalf and appear regular on their face and relate to such
Mortgage Loan, and (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (ii), (iv) and (vi)(B) of the definition of
"Mortgage Loan Schedule" is correct and the Mortgage Rate set forth in clause
(iii)(a) of the definition of "Mortgage Loan Schedule" matches the Mortgage Rate
in effect on the date of origination or of the most recent written amendment to
such Mortgage Rate which is contained in the Mortgage File.
Neither the Trustee or Custodian is under any duty or (i) to
determine whether any of the documents specified in clauses (iv) through (viii),
(x) through (xii) and (xiv) through (xx) of the definition of "Mortgage File"
exist or are required to be delivered by the Mortgage Loan Seller in respect of
any Mortgage Loan or (ii) to inspect, review or examine any of the documents,
instruments, certificates or other papers relating to the Mortgage Loans
delivered to it to determine that the same are genuine, enforceable, in
recordable form or appropriate for the represented purpose, or that they are
other than what they purport to be on their face.
Any terms used herein and not defined shall have the
respective meaning assigned to them in the related Agreement.
Respectfully,
[Name]
[Title]
cc: Robert W. Long, Esq., Assistant General Counsel, BankAmerica Corporation
<PAGE>
EXHIBIT J
FORM OF FINAL CUSTODIAL CERTIFICATION
[Date]
NationsLink Funding Corporation,
as Depositor
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: David A. Gertner
Nationsbank, N.A.,
as Mortgage Loan Seller
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: David A. Gertner
Banc One Mortgage Capital Markets, LLC,
as Master Servicer and Special Servicer
1717 Main Street, 12th Floor
Dallas, Texas 75201
Attention: Paul G. Smyth
Re: Pooling and Servicing Agreement dated as of February 1,
1999 (the "Agreement") among NationsLink Funding
Corporation, as Depositor, Nationsbank, N.A., as
Mortgage Loan Seller, Banc One Mortgage Capital Markets,
LLC, as Master Servicer and Special Servicer, and
Norwest Bank Minnesota, National Association, as Trustee
and REMIC Administrator for the Certificateholders of
Commercial Mortgage Pass Through Certificates, Series
1999-1
Ladies and Gentlemen:
Pursuant to Section 2.02 of the above referenced Agreement,
the Trustee hereby certifies as to each Mortgage Loan listed on the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full), and except as
specifically identified in the exception report annexed hereto, (i) all
documents specified in clauses (i), (ii), (ix) and, if the Mortgage Loan
Schedule specifies that the related Mortgagor has a leasehold interest in the
related Mortgaged Property, (xiii) of the definition of "Mortgage File" are in
its possession or the possession of a Custodian on its behalf, or the Mortgage
Loan Seller has otherwise satisfied the delivery requirements in respect of such
documents in accordance with Section 2.01(c), (ii) it or a Custodian on its
behalf has received either the original or copy of each of the assignments
specified in clauses (iii) and (v) of the definition of "Mortgage File" that
were delivered by the Mortgage Loan Seller with evidence of recording thereon,
(iii) all documents received by it or any Custodian in respect of such Mortgage
Loan have been reviewed by it or by such Custodian on its behalf and appear
regular on their face and relate to such Mortgage Loan, and (iv) based on the
examinations referred to in Section 2.02 (b) and Section 2.02(c) and only as to
the foregoing documents, the information set forth in the Mortgage Loan Schedule
with respect to the items specified in clauses (ii), (iv) and (vi)(B) of the
definition of "Mortgage Loan Schedule" is correct, and the Mortgage Rate set
forth in clause (iii)(a) of the definition of "Mortgage Loan Schedule" matches
the Mortgage Rate in effect on the date of origination or of the most recent
written amendment to such Mortgage Rate which is contained in the Mortgage File.
Neither the Trustee or Custodian is under any duty or (i) to
determine whether any of the documents specified in clauses (iv) through (viii),
(x) through (xii) and (xiv) through (xx) of the definition of "Mortgage File"
exist or are required to be delivered by the Mortgage Loan Seller in respect of
any Mortgage Loan or (ii) to inspect, review or examine any of the documents,
instruments, certificates or other papers relating to the Mortgage Loans
delivered to it to determine that the same are genuine, enforceable, in
recordable form or appropriate for the represented purpose, or that they are
other than what they purport to be on their face.
Any terms used herein and not defined shall have the
respective meaning assigned to them in the related Agreement.
Respectfully,
[Name]
[Title]
cc: Robert W. Long, Esq., Assistant General Counsel, BankAmerica Corporation
<PAGE>
EXHIBIT K
FORM OF OPERATING STATEMENT ANALYSIS REPORT
AS OF MM/DD/YY
PROPERTY OVERVIEW:
Prospectus Number
Sched Balance/Paid to Date
Property Name
Property Type
Property Address
City, State
Net Rentable Square Feet
Year Built/Renovated
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
199X
Year of Operations Underwriting 199X 199X 199X YTD/Trailing*
Occupancy Rate
Average Rental Rate
** Servicer will not be expected to "Normalize" these YTD numbers
</TABLE>
INCOME:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
No. of Months # of months
Period Ended Underwriting 199X 199X 199X 199X 199X-Base 199X-199X
Basis Normalized Normalized Normalized YTD/Trailing Variance Variance
</TABLE>
Statement Classification
Rental Income-Category 1
Rental Income - Category 2
Rental Income - Category 3
Pass Through/Escalations
Other Income
EFFECTIVE GROSS INCOME:
OPERATING EXPENSES:
Real Estate Taxes
Property Insurance
Utilities
General and Administration
Repairs and Maintenance
Management Fees
Payroll and Benefits
Advertising and Marketing
Professional Fees
Other Expenses
Ground Rent
TOTAL OPERATING EXPENSES
OPERATING EXPENSE RATIO
NET OPERATING INCOME
Leasing Commissions
Tenant Improvements
Replacement Reserves
Total Capital Items
NOI AFTER CAPITAL ITEMS
Debt Service (per servicer)
Cash Flow after Debt Service
DSCR (NOI/Debt Service)
DSCR (after reserves/cap exp)
Source of Financial Data:
Income Comments:
Expense Comments:
Capital Items Comments:
<PAGE>
SCHEDULE I
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
LOAN NUMBER PROPERTY NAME PROPERTY ADDRESS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
50099 300 Carpenter Apartments 300 Carpenter Dr.
50121 5450 NW Central 5450 Northwest Central Drive
50148 Salisbury Mall Jake Alexander Blvd & U.S.Highway 70
50166 La Jolla International Gardens 3415-3465 Lebon Drive
50167 La Scala Apartment Villas 3833-3899 Nobel Drive
50207 Church Crossing Shopping Center North Church Street and Lees Chapel Road
50312 Westminster Retirement Residence 11 East Augusta Place
50319 Applebee's #8673, 8902 & 9145 Summary Page
50322 Applebee's #8623 & #8867 Summary Page
50331 Crosswinds West Apartments 5525 Southwest 41st Street
50336 The Park At Westridge Apartments 11809 East 83rd Street
50391 Lakewest Town Center 2211-2329 Singleton Blvd.
50499 Sears Plaza 290 Elliot Street
50509 Oxnard Villa Apartments 13115-13129 Oxnard Street
50563 River View Condominiums 93 Richards Avenue
50648 Colonial Plaza Apts 215 Sand Beach Blvd
50668 Museum Walk Apartments 3500 SW 19th Ave
50695 The Summit Shopping Center* NEC of US Hwy. 280 & I-459
50776 Terraces Apartments 4739 Buford Highway
50788 2474 Valentine Avenue Apartments 2474 Valentine Avenue
50825 Purolator Distribution Center 4800 Corporation Drive
50828 Community Programs, Inc 423 West Landis Ave
50852 Windover Woods Apartments 2605 Columbia Blvd
50853 Greentree Apts 6405 N.E. Hazel Dell Ave
50883 University Center North Shopping Center 1405 SW 107th Ave.
50888 Northpark Village Apts 3502 Newman Road
50894 The Courtyards Apartments 1231 SW 3rd Avenue
50902 McGaw Business Center 1555-1565 McGaw Ave, 17151-17153 Gillette Ave
50904 College View Apartments 1105 Northwest 3rd Ave
50912 Westphalia Retirement Center HCR-65, Box 6
50913 DeSoto Residential Care Apartments 1710 Koch Lane
50914 Indian Hills Retirement Village 2601 Fair Street
50915 Oak Tree Villas Assisted Living 3108 W. Truman Blvd.
50929 Patrick Airport Center 2900 East Patrick Lane
50930 Ironhorse Park 1040 Ironhorse Drive
50933 Collierville Business Center Summary Page
50935 Barrington Apartments 607 Moody Road
50937 Belle Terrace Apartments 1-2 Dark Hollow Road and 3-8 Presidents Drive
50941 Village at Countryside 26210 US Highway 19 N
50942 Staples - Hobbs NM 1731 Turner St.
50960 Kentwood Apartments 3000 North Kentwood Ave.
50969 Eastwyck Village Apartments 1201 Edenham Court
50975 Brentwood Plaza 1 Brent Lane
50979 Spring Cove Marina 455 Lore Rd.
50986 Grand Rose Apartments 1601-1649 East Grand Ave
50990 Ashley Landing Shopping Center 1401 Sam Rittenberg Rd.
50993 North Valley Mobile Home Park 7051 Buffalo Trail
50994 Picacho Mobile Home Park 2200 Holiday Avenue
50999 Tenley Medical Office Building 50 & 51 W. Edmonston Dr.
51001 Rainbow Shopping Center 7920-8000 SW 8th St.
51004 Westside Colonial Apartments 10-70 Westland Street and 985-997 Pleasant Street
51006 The Lodge at Woodcliff 199 Woodcliff Drive
51007 The Prado 5600 Roswell Rd.
51008 Washington Square Shopping Center S. McDowell Blvd. & E. Washington
51009 Bull Creek Apartments 5001 Bull Creek Road
51010 Daniels Crossing Shopping Center 6900 Daniels Parkway
51012 Northrup Court Apartments 805 Applegrove Street, NW
51013 Federal Express Distribution Facility 1525 Morrison Parkway
51014 L2 - Goldfarb Apartments Summary Page
51015 Brighton Court Retirement Center 1308 N. Vercler Rd
51016 Glendale Executive Campus 1000 White Horse Rd.
51018 Clearwater Plaza Shopping Center 1219-1293 Missouri Ave.
51023 L1 - Goldfarb Apartments 107 E. Healy Street
51025 New Market Crossing Shopping Center 695 Independence Blvd.
51026 Montefiore Medical Office Bldg. 3316 Rochambeau Ave.
51027 L3 - Goldfarb Apartments Summary Page
51028 Innsbruck West Apartments 2302 Loop 289 West
51029 Renfro Warehouse Highway 76 & Springdale Road
51033 L4 - Goldfarb Apartments Summary Page
51034 Blueberry Estates 1-8 Cicero Drive, 1-5 & 7 Blueberry Lane
51035 L7 - Goldfarb Apartments Summary Page
51036 L9 - Goldfarb Apartments 105 S. Wright
51038 Le Tournesol Apartments 2640 Portage Bay Ave
51039 Genito Forest Shopping Center 11,000 Hull St. (US Route 360)
51041 Indiana Village Apartments 701 North Indiana Ave.
51042 Westside Apartments 221 W. 70th St, 26, 28 & 30 W. 88th St. & 37 West 89th St.
51043 Sunscape Apartments 2426 West Cardinal Loop
51045 Washington Shoppes Shopping Center 10009-10089 E. Washington St.
51046 L5 - Goldfarb Apartments Summary Page
51048 Lulav Square Apartments 620-644 Lenox Avenue
51053 L6 - Goldfarb Apartments Summary Page
51055 Sail Cloth Factory Apartments 121 South Fremont Ave.
51056 Sheridan Square Apartments 402 NW Sheridan Rd
51058 Del Plaza Shopping Center Independence St. at Harrison St.
51060 Lighthouse Lodge and Suites 1150 & 1249 Lighthouse Ave.
51061 Office Depot Center 6700 Folsom Blvd.
51065 Ambassador East Apartments 8911 Northeastern Blvd. NE
51066 Forest at Duck Creek Apartments 4328 Duck Creek Drive
51068 North Towne Square Shopping Center 2529-2537 N. Broad Street
51069 Stern Business Center 8901 Farrow Road
51072 Payless Shoes Store (Beltline Blvd.) 4240 W. Beltline Blvd. & 2941 Two Notch Rd.
51073 Payless Shoe Store (Dutch Square) 1725 Broad River Rd.
51074 Washington Corners Shopping Center 9910-9994 E. Washington St.
51075 L10 - Goldfarb Apartments 306-410 E. Michigan Ave
51076 1636 Lexington Avenue Apartments 1636-1648 Lexington Ave
51077 Royal Orleans Apartments 1924-A McAllister Drive
51079 Castleton Village Shopping Center SEQ 82nd St. & Craig St.
51080 Bedford Square Office Building 1314 Bedford Ave.
51081 Castleton Place Shopping Center 82nd St. @ Castleton Square Mall
51086 Glen Garden Apartments 316 - 330 Glen Ave. & Memorial Plaza
51087 San Luis Rey Center 73705-73745 El Paseo
51090 Brickyard Shopping Center 9940 Two Notch Road
51092 Trianon Centre 850 Park Shore Drive & 3777 Tamiani Trail N.
51093 Park Lane Apartments 412 South Willaman Drive
51094 277 Broadway Office Building 277 Broadway
51096 Aspen Circle Apartments 3717 East San Miguel Street
51101 Gaylord Apartments 3355 Wilshire Blvd.
51103 Redmoor Industrial Center 18080 Northeast 68th St.
51104 Broadway & 171st 621 W. 171st St & 620 W. 172nd St.
51105 Payless Mini Storage 633 West Swain Road
51106 Pinellas Place Shopping Center 6501 102nd Ave
51107 Hatcher Point Mall 2215 Memorial Dr.
51109 Kingsley Tool Company 3000 Kingsley Rd.
51111 Corte Madera Plaza 21 Tamal Vista Blvd.
51115 Mid-Valley Automotive 18401-18425 Vanowen St.
51116 Lancaster Triangle 42158-43271 15th St. West & 1525 West Ave. K
51117 For Eyes, Gwinnett 2130 Pleasant Hill Rd.
51118 Heartland Shopping Center 2272-2375 Richmond Ave.
51119 Eckerds 1220 Horizon Rd.
51120 Rosewood Industrial Plaza 4500-4530 N. Hiatus Rd.
51121 Lexington Suites Hotels Summary Page
51122 Fairfield Inn 20 Orme Dr.
51123 522 East 6th St. Apartments 522 East 6th Street
51124 270 East 10th St. Apartments 270 East 10th Street
51125 Mountain Park Square, Ph II 4232 East Chandler Blvd.
51127 Raintree Meadows Apartments 471 N. Harr Drive
51129 Huntington Center Industrial Properties Summary Page
51130 147 Waverly Place 147 Waverly Place
51131 450 7th Avenue 450 7th Ave. (Nelson Bldg.)
51132 Cabaret Center 25700 - 25720 US Highway 19 North
51134 Goldmine Village Shopping Center 300 and 400 Wal-Mart Way
51135 Cedar Crossings Apartments 5804 Rosebay Court
51136 Spacious Acres Mobile Home Park W1211 015 Lakeview Drive
51137 Frontier Regional HQ 2710 Executive Drive
51138 Hillside Industrial II 994 & 996 Flower Glen St.
51139 Landmark Plaza 14306-14308 N. Dale Mabry Hwy
51143 Tall Pines Mobile Home 314 South Erie Drive
51145 Handy Storage 13 350 South University Drive
51146 River Crossing Shopping Center US 1/601 South
51147 Polo Plaza Shopping Center 9810 Two Notch Rd.
51148 The Vyne at Meadows Park 12221 West Maple Street
51149 Mayfair Portsmouth 901 Enterprise Way
51150 Pilgrim Manor of Bossier City N. Nursing Home 1524 Doctors Drive
51151 2626 Naylor Road Shopping Center 2626 Naylor Rd. SE
51156 Spyglass Inn 2703 & 2705 Spyglass Dr.
51157 Fireside Inn (Best Western) 6700 Moonstone Beach Dr.
51158 Uptown Square Office Building 6601-6605 Uptown Blvd, NE
51159 Fort Knox Mini Storage 6650 Edith Blvd NE
51160 Foxwood Apartments 6655 North Fresno Street
51161 UMC Taco Bell 2116 West Craig Road
51165 195 East Road Office Building 195 East Road
51166 600 6th Street Office Building 600 6th St.
51167 Museum Parke Office Building 1350-1450 Central Ave.
51169 Horton 4th Avenue Apartments 770-810 4th Ave
51170 Center Street Industrial Center 4400 34st Street North- US Highway 19
51172 UMC Quick Care 2031 North Buffalo St.
51173 Raintree Apartments 1200 W. McGaffey St.
51174 UMC Sierra 2202 W. Craig Road
51175 Evergreen Estate Mobile Home Park 415 Western Avenue SW
51176 Cloverleaf Mobile Home Park 150 Highway 10 North
51177 South Hills Mobile Home Park 100 Long Lane
51178 Monroe Estates Mobile Home Park 560 W. 21st Street
51179 Camelot Mobile Home Park 1140 Arthur Blvd
51180 Lakeshore Terrace Mobile Home Park 2136 Colan Blvd
51181 Forest Junction Mobile Home Park West 2377 US Highway 10
51182 Alexandria Mobile Estates 3305 South Broadway, Lot 50
51183 Maplewood Mobile Home Park Route 3, Lot 49
51184 Shamrock Mobile Home Park 1009 Shamrock Lane
51185 Forest Downs Apartments 10224 W. Forest Home Ave.
51188 Yacoub Property:True Value Hardware 724 Irving Street
51189 Avon Street Apartments 33, 39 and 45 Avon Street South
51190 Apache Manor Apartments 3817 Macalaster Dr. NE
51192 Lakeside Village Apartments 1555 Ridgeview Dr.
51196 L.A. Woman Building 11650 Santa Monica Blvd
51197 PetsMart Retail Building 820 Paseo Del Rey
51198 Beverly Plaza Apartments 3655-3739 Beverly Ave. NE
51199 Wendys 1305-07 N. Vermont Ave.
51201 Central Avenue Plaza 4349-69 Central Avenue
51202 Campus Village Apartments 263 N Chorro St.
51203 Country Club Mobile Home Park 5315 Targee St.
51204 Green Acres Mobile Home Park 816 North Midland Blvd
51205 Clark Foods Sterling Heights 6635 Sterling Drive South
51207 Magnolia Center 10689 Magnolia Ave.
51209 Arabian Gardens Mobile Home Park 81-600 Fred Waring Drive
51210 Trader Joes 1820 S Grant St.
51211 Fountain Bell Office Building 10240 West Bell Road
51212 Rollingwood Mobile Home Park 20 Rollingwood Dr.
51213 Aplex Building 830 Stewart Dr.
51215 Orion Garden Apartments 8414 Orion Ave.
51217 Rancho Plaza 8710 19th St. & 6612-6660 Carnelian Street
51219 Towne House Plaza 9791-9901 Adams Ave. & 19881-19893 Brookhurst St.
51220 Willow Pass Center 1657 Willow Pass Rd
51221 Chaumont Villas 1600 West Broadway
51224 Pillsbury Manor 2435 Pillsbury Ave.
51227 Mighty Micro Building 3400 Gateway Blvd
51228 701 Montana 701-715 Montana Ave.
51230 AAA Self Storage 226 Doctor Claassen Way
51231 BlueBonnet Self Storage 200 Maple St.
51233 Pier I Imports Building 733 Grand Avenue
51235 420 Building 420 West Lake Cook Road
51236 Marriott Center 4701 Patrick Henry Dr., Buildings 17 and 19
51237 Applied Graphics Tech 5670 Oberlin Dr.
51238 6501 Van Nuys Building 6501 Van Nuys Blvd.
51239 Academy Crossing Shopping Center 280-296 S Academy Blvd
51240 San Clemente Office Building 111/115 Calle De Industrias
51241 Dee Building 4916 El Camino Real
51242 Brookhurst Center 519-521 S. Brookhurst St.
51243 282 Second Street 282 Second St.
51244 Fairfield Way Office Park 121-129 Fairfield Way
51245 Silver Ridge Apartments 1230 E. 38 1/2 Street
51246 Wilshire Occidental Apartments 415 South Occidental Blvd
51248 Woodside Apartments 2930 North 52nd St.
51249 Ygnacio Woods Office Complex 2255 Ygnacio Valley Road
51250 Hi-Val Industrial 1300 E Wakeham Ave.
51251 947 Bush Street 947 Bush St.
51253 La Verne Town Center North 2445-2497 Foothill Blvd
51254 379 Lytton Avenue Building 379 Lytton Ave.
51255 Naperville Professional Center 608 South Washington St.
51256 Faber Street Industrial Building 2801-2809 Faber St.
51258 Redfield Tech Center 7848 East Redfield Rd
51259 Louisville Medical/Dental 325-333 S. Boulder Rd
51261 Kenmore View Apartments 1840 North Kenmore Ave.
51262 The Ellinwood Center 1300 Contra Costa Blvd
51263 Central Plaza 11629 - 11655 Valley Blvd
51264 Anaheim Town Center 100 West Lincoln Ave.
51265 Black Mountain Industrial 9520 Black Mountain Rd
51266 920 Morena Industrial 920 Morena Blvd
51267 1210 West Morena Blvd 1210 West Morena Blvd
51268 Buenos Industrial 980 Buenos Ave.
51269 C Street Industrial 591 - 595 C Street
51271 1407-1415 W. Sherwin Ave. Apts. 1407-1415 W. Sherwin Ave.
51273 Custom Research Building 10301 Wayzata Blvd.
51274 Ventura Blvd Retail 18061, 18063 & 18065 Ventura Blvd
51275 Calabasas Office Building 4766 Park Granada Blvd
51277 Faraday Ave. Light Industrial 3 Faraday Ave.
51281 Casa Del Campbell Apartments 2525 -2529 West Campbell Ave.
51282 Schucks Automotive 3610 Overland Rd.
51283 Kragen Auto Parts-Chico CA 1618 Mangrove Ave.
51284 Mission Center 2335 Misson St.
51285 2300 McDaniel St. 2280-2320 McDaniel St.
51286 San Gabriel Square 140 West Valley Blvd
51287 Hensel Garden Apartments 300-336 North Garfield Ave.
51288 Park Village Shopping Center 7019 South Redwood Rd
51289 Park Place Apartments-Tustin CA 16282 West Main St.
51291 Dinkydome & Starbucks 1501 University Ave. SE & 1500 Fourth Street SE
51293 Country Club Offices, Ltd 7490 Clubhouse Road
51294 Grace Manor Apartments 3323 SW Multnomah Blvd.
51295 Columbia Professional Center 10840 Little Pataxent Parkway
51296 Green Street Building 918 East Green St.
51297 Stadium Terrace Apartments 1960 N Canyon St.
51298 Sandra Plaza 2728-2730 West 3500 South
51299 Broadway Manor 1051 Broadway
51300 669 Grand Avenue Apartments 669 Grand Ave.
51301 682 Grand Ave. Apartments 682 Grand Ave.
51302 Summit Avenue Apartments 901-909 Summit Ave.
51303 Sun Valley Apartments 12440 N. 113th Ave.
51304 Plaza Temecula 27326 Jefferson Ave.
51308 Calabasas Retail Center 23528-23536 Calabasas Rd
51309 23201 Mill Creek Drive Building 23201 Mill Creek Dr.
51310 30 Janis Way Building 30 Janis Way
51311 North County Medical Dental Center 9855 Erma Rd.
51312 NationsBank Building 9385 North 56th Street
51313 Rafael North Executive Park 155 North Redwood Dr.
51316 La Jollan Townhouse 2638 Torrey Pines Road
51317 Strip Retail Center 16304 E 14th St.
51318 Hennepin Ave. Apartments 2609 Hennepin Ave.
51319 Charles Avenue Apartments 1958, 1604, & 1618 Charles Ave.
51320 Bostonia Townhomes 1234 & 1242 North 1st St.
51322 Justin Court Apartments 156 Warner Milne Rd.
51323 Bryant Avenue Apartments 2517 Bryant Ave. South
51324 851 Mistletoe Lane 851 Mistletoe Lane
51325 Napa Broadway Apartments 5410 Broadway
51328 Evergreen Center 5575 - 5669 Mack Rd.
51329 McClelland Office Park 2850 McClelland Drive
51334 Valley View Building 16932 Valley View Ave.
51336 1835-1839 Green St. Apartments 1835-1839 Green Street
51338 Sutter Medical Office Clinic 12811 Covey Circle
51339 1967 Grand Ave. Apartments 1967 Grand Avenue
51340 Hertz Equipment Rental Warehouse 800 Industrial Circle South
51341 Franklin Ave. Apartments 600 Franklin Ave.
51342 1962 Grand Ave. Apartments 1962 Grand Avenue
51343 Johnson Apartments 2244 Johnson St. NE
51346 Bentek Manufacturing Building 2350 Harris Way
51347 Tamarisk Apartments 3221 North 36th Street
51348 Barrington Apartments 2449 S. Barrington Ave.
51349 Roosevelt Place Shopping Center 2237-2269 Colorado Boulevard
51351 Thousand Oaks Business Center 250, 270 & 290 Conejo Ridge Avenue
51353 San Marcos Retail Plaza 3708-3732 Eubank Blvd NE
51354 Colter Meadows Apartments 3010 West Colter St.
51355 Grouse Creek Center 23798 U.S. Highway 24
51356 Executive Mini-Storage 6340 Freeport Blvd
51357 Cote D'Azur Apartments 11117 Hartsook Street
51358 33300 Western Ave Industrial Center 33300 Western Avenue
51365 Napa Warehouse 912-918 Enterprise Way
51366 Home Base Building 1900 19th Ave. SE
51367 Park Place of Layton Office Building 579 West Heritage Blvd
51368 Contra Costa Water District Building 2300 Stanwell Dr.
51371 Liberty Square Office 914 North San Francisco Street
51372 Casa de Porter Apartments 512 N Porter St.
51373 Garden Road Office Plaza 2150 Garden Road
51376 RE/Max West Building 5440 Ward Road
51377 Canyon Country Mobile Home Park 16274 Vasquez Canyon Road
51378 Green Gables Shoppette 7800 West Jewell Ave.
51380 Safeguard Mini Storage (South) 450 E. Almond Ave
51381 Safeguard Mini Storage (North) 16173 Golden State Blvd
51382 Arcadia Center 556-558 Las Tunas Drive
51383 Baybridge Business Park 320-640 North 2200 West Street
51385 The Breakers Apartments 9901 West Sahara Ave.
51386 Eagle Trace Apartments 5370 E. Craig Rd.
51387 Magellan Systems Building 1292-1294 Hammerwood Avenue
51388 Kentwood Mobile Estates 123 Henshaw Avenue
51390 Croftwood Apartments 1005 Craycroft Road
51395 Yuma Mesa Shopping Center 1601 S. 4th Ave
51396 Lake Forest Light Industrial Building 20611 Canada Road
51397 Country Corner Retail Center 2240 Encinitas Blvd.
51398 Gemstone Mobile Home Park 2451 Soledad Canyon Road
51399 Fremont Light Industrial Building 44829-44853 Freemont Blvd
51400 Air Liquide Light Industrial 201 S. River Run Road
51401 Katie Reed Plaza 210 South Monarch Street
51402 2111 Business Center Drive 2111 Business Center Drive
51413 Chestnut Place Retail Center 13991-13997 Anderson Lakes Parkway
51415 Banana Belt Strip Center 300 West Highway 24
51419 1435-1445 E. Ft. Lowell Road 1435-1445 E. Ft. Lowell Rd.
51423 Del Rey Self Storage 4051-4063 Redwood Avenue
51425 Sheila Gardens 200 Sheila Court
51426 Sanger Self Storage 225 L Street
51428 RFS Hotel Note A Summary Page
51429 RFS Hotel Note B Summary Page
51434 Starling Office Building 7798 Starling Drive
51435 Kragen Auto Parts-Marysville CA 905 B Street
51442 Chateau DePaix 9848 Tabor Street,
<CAPTION>
MORTGAGE AMORTIZATION ORIGINAL
LOAN NUMBER CITY STATE ZIP CODE RATE (%) BASIS BALANCE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
50099 Sandy Springs GA 30328 8.410% ACT/360 $2,772,000
50121 Houston TX 77092 8.350% ACT/360 $1,050,000
50148 Salisbury NC 28144 7.770% ACT/360 $12,650,000
50166 San Diego CA 92122 7.515% ACT/360 $29,100,000
50167 San Diego CA 92122 7.515% ACT/360 $26,400,000
50207 Greensboro NC 27455 8.040% ACT/360 $3,208,200
50312 Greenville SC 29605 7.450% ACT/360 $7,200,000
50319 Multiple FL Multiple 8.600% ACT/360 $9,330,000
50322 Multiple GA Multiple 8.600% ACT/360 $6,110,000
50331 Pembroke Park FL 33023 7.810% ACT/360 $2,136,000
50336 Raytown MO 64138 7.370% ACT/360 $1,560,000
50391 Dallas TX 75212 7.480% ACT/360 $4,000,000
50499 Ashland MA 01721 7.455% ACT/360 $2,700,000
50509 Van Nuys CA 91401 7.280% ACT/360 $1,432,000
50563 Norwalk CT 06854 7.090% ACT/360 $6,406,928
50648 Shreveport LA 71105 7.310% ACT/360 $4,400,000
50668 Gainesville FL 32607 6.720% ACT/360 $6,340,000
50695 Birmingham AL 35243 8.273% ACT/360 $54,000,000
50776 Chamblee GA 30341 7.260% ACT/360 $3,426,000
50788 Bronx NY 10458 7.500% ACT/360 $1,098,000
50825 Fayetteville NC 28306 6.870% ACT/360 $10,300,000
50828 Vineland NJ 08360 8.730% ACT/360 $3,940,000
50852 Titusville FL 32780 6.870% ACT/360 $2,250,000
50853 Vancouver WA 98665 7.100% ACT/360 $1,420,000
50883 Miami FL 33174 6.900% ACT/360 $16,000,000
50888 Joplin MO 64801 7.060% ACT/360 $2,329,160
50894 Gainesville FL 32601 6.960% ACT/360 $5,000,000
50902 Irvine CA 92614 7.110% ACT/360 $2,625,000
50904 Gainesville FL 32604 7.050% ACT/360 $1,644,000
50912 Westphalia MO 65085 7.570% ACT/360 $3,150,000
50913 DeSoto MO 63020 7.570% ACT/360 $2,900,000
50914 Chillicothe MO 64601 7.570% ACT/360 $2,200,000
50915 Jefferson City MO 65109 7.570% ACT/360 $3,900,000
50929 Las Vegas NV 89120 7.180% ACT/360 $3,600,000
50930 Park City UT 84060 6.900% ACT/360 $5,400,000
50933 Multiple TN Multiple 7.100% ACT/360 $3,400,000
50935 Palatka FL 32177 6.900% ACT/360 $2,920,000
50937 Port Jefferson NY 11777 6.900% ACT/360 $2,500,000
50941 Clearwater FL 33761 7.090% ACT/360 $4,200,000
50942 Hobbs NM 88240 7.125% ACT/360 $2,000,000
50960 Springfield MO 65803 7.125% ACT/360 $660,000
50969 Virginia Beach VA 23464 6.760% ACT/360 $2,600,000
50975 Pensacola FL 32503 7.050% ACT/360 $2,500,000
50979 Solomons MD 20688 8.170% ACT/360 $2,500,000
50986 Escondido CA 92027 6.720% ACT/360 $3,760,000
50990 Charleston SC 29407 6.850% ACT/360 $6,000,000
50993 San Antonio TX 78238 6.820% ACT/360 $1,750,000
50994 Las Cruces NM 88005 6.870% ACT/360 $1,750,000
50999 Rockville MD 20852 7.120% ACT/360 $4,348,000
51001 Miami FL 33144 7.210% ACT/360 $3,040,000
51004 Brockton MA 02301 6.520% ACT/360 $5,265,000
51006 Fairport NY 14450 7.140% ACT/360 $17,250,000
51007 Atlanta GA 30342 7.120% ACT/360 $5,300,000
51008 Petaluma CA 94954 6.680% ACT/360 $10,000,000
51009 Austin TX 78731 7.100% ACT/360 $610,000
51010 Fort Myers FL 33912 6.885% ACT/360 $9,000,000
51012 North Canton OH 44720 7.000% ACT/360 $1,414,000
51013 Alpharetta GA 30004 6.930% ACT/360 $4,000,000
51014 Multiple IL Multiple 6.570% ACT/360 $4,317,000
51015 Spokane WA 99216 7.390% ACT/360 $3,500,000
51016 Voorhees Township NJ 08043 6.970% ACT/360 $3,325,000
51018 Clearwater FL 33756 7.160% ACT/360 $3,400,000
51023 Champaign IL 61820 6.570% ACT/360 $443,000
51025 Mount Airy NC 27030 6.930% ACT/360 $3,900,000
51026 Bronx NY 10467 7.250% ACT/360 $2,270,000
51027 Multiple IL Multiple 6.650% ACT/360 $3,007,200
51028 Lubbock TX 79407 6.790% ACT/360 $4,240,000
51029 Clinton SC 29325 7.170% ACT/360 $11,700,000
51033 Champaign IL 61820 6.650% ACT/360 $5,360,000
51034 Lakeville MA 02347 7.000% ACT/360 $3,106,000
51035 Multiple IL Multiple 6.520% ACT/360 $2,772,000
51036 Champaign IL 61820 6.520% ACT/360 $1,680,000
51038 Davis CA 95616 6.980% ACT/360 $2,200,000
51039 Richmond VA 23112 7.250% ACT/360 $4,500,000
51041 Lubbock TX 79415 6.810% ACT/360 $5,440,000
51042 New York NY 10023 6.670% ACT/360 $2,100,000
51043 Del Valle TX 78617 6.845% ACT/360 $4,075,000
51045 Indianapolis IN 46229 6.820% ACT/360 $3,360,000
51046 Multiple IL Multiple 6.570% ACT/360 $8,240,000
51048 Miami Beach FL 33139 7.050% ACT/360 $3,200,000
51053 Multiple IL Multiple 6.520% ACT/360 $3,740,000
51055 Baltimore MD 21201 6.780% ACT/360 $4,520,000
51056 Lawton OK 73505 6.820% ACT/360 $5,200,000
51058 Shawnee OK 74801 7.165% ACT/360 $2,050,000
51060 Pacific Grove CA 93950 7.310% ACT/360 $9,300,000
51061 Sacramento CA 95819 6.920% ACT/360 $2,137,500
51065 Albuquerque NM 87112 7.010% ACT/360 $2,900,000
51066 Garland TX 75043 6.830% ACT/360 $3,440,000
51068 Camden SC 29020 7.030% ACT/360 $1,480,000
51069 Columbia SC 29203 6.990% ACT/360 $4,000,000
51072 Columbia SC 29204 7.280% ACT/360 $695,089
51073 Columbia SC 29210 7.280% ACT/360 $628,000
51074 Indianapolis IN 46229 6.870% ACT/360 $3,700,000
51075 Urbana IL 61801 6.570% ACT/360 $2,560,000
51076 New York NY 10029 7.500% ACT/360 $1,788,000
51077 Charlotte NC 28216 6.800% ACT/360 $3,500,000
51079 Indianapolis IN 46250 6.920% ACT/360 $3,250,000
51080 Pikesville MD 21208 7.110% ACT/360 $1,775,000
51081 Indianapolis IN 46250 6.920% ACT/360 $4,710,000
51086 Salisbury MD 21804 7.050% ACT/360 $1,800,000
51087 Palm Desert CA 92260 7.060% ACT/360 $3,425,000
51090 Columbia SC 29223 7.063% ACT/360 $2,419,000
51092 Naples FL 34103 6.650% ACT/360 $6,100,000
51093 Los Angeles CA 90048 6.550% ACT/360 $4,500,000
51094 New York NY 10007 7.000% ACT/360 $3,490,000
51096 Colorado Springs CO 80909 6.610% 30/360 $2,325,000
51101 Los Angeles CA 90010 7.000% ACT/360 $5,220,000
51103 Redmond WA 98052 7.270% ACT/360 $2,000,000
51104 New York NY 10032 7.050% ACT/360 $4,650,000
51105 Stockton CA 95207 7.250% ACT/360 $1,399,000
51106 Pinellas Park FL 33782 7.125% ACT/360 $3,700,000
51107 Waycross GA 31501 7.250% ACT/360 $7,000,000
51109 Garland TX 75041 7.000% ACT/360 $5,342,250
51111 Corte Madera CA 94925 6.945% ACT/360 $9,100,000
51115 Reseda CA 91335 7.300% ACT/360 $2,150,000
51116 Lancaster CA 93534 7.150% ACT/360 $2,230,000
51117 Duluth GA 30136 7.400% ACT/360 $1,840,000
51118 Staten Island NY 10314 7.000% ACT/360 $7,000,000
51119 Rockwall TX 75032 7.000% ACT/360 $2,984,000
51120 Sunrise FL 33351 7.125% ACT/360 $1,750,000
51121 Multiple TX Multiple 7.750% ACT/360 $9,285,000
51122 Vicksburg MS 39180 7.625% ACT/360 $2,800,000
51123 New York NY 10009 7.250% ACT/360 $750,000
51124 New York NY 10009 7.250% ACT/360 $1,600,000
51125 Phoenix AZ 85044 7.200% ACT/360 $1,425,000
51127 Midwest City OK 73110 7.000% ACT/360 $3,900,000
51129 Multiple CA Multiple 7.000% ACT/360 $5,050,000
51130 New York NY 10014 7.375% ACT/360 $1,800,000
51131 New York NY 10123 7.000% ACT/360 $11,000,000
51132 Clearwater FL 33763 7.000% ACT/360 $1,800,000
51134 Dahlonega GA 30533 7.000% ACT/360 $2,520,000
51135 Frederick MD 21703 7.000% ACT/360 $3,200,000
51136 Sullivan WI 53178 7.100% ACT/360 $3,096,000
51137 Green Bay (Ashwaubenon) WI 54304 7.000% ACT/360 $3,848,000
51138 Simi Valley CA 93065 7.010% ACT/360 $5,000,000
51139 Tampa FL 33618 7.000% ACT/360 $2,200,000
51143 Fort Pierce FL 34946 7.000% ACT/360 $3,500,000
51145 Pembroke Pines FL 33025 7.000% ACT/360 $3,000,000
51146 Lugoff SC 29078 7.000% ACT/360 $1,700,000
51147 Columbia SC 29223 7.000% ACT/360 $2,900,000
51148 Wichita KS 67235 7.625% ACT/360 $2,489,631
51149 Portsmouth VA 23704 7.375% ACT/360 $2,150,000
51150 Bossier City LA 71111 7.750% ACT/360 $5,400,000
51151 Washington DC 20020 7.500% ACT/360 $2,200,000
51156 Pismo Beach CA 93449 7.000% ACT/360 $3,150,000
51157 Cambria CA 93428 7.160% ACT/360 $2,800,000
51158 Albuquerque NM 87110 7.000% ACT/360 $4,800,000
51159 Albuquerque NM 87113 7.170% ACT/360 $1,350,000
51160 Fresno CA 93710 6.850% ACT/360 $6,856,000
51161 North Las Vegas NV 89031 8.000% ACT/360 $742,000
51165 Los Alamos NM 87544 7.125% ACT/360 $3,705,000
51166 Los Alamos NM 87544 7.250% ACT/360 $920,000
51167 Los Alamos NM 87544 7.000% ACT/360 $4,000,000
51169 San Diego CA 92101 7.150% ACT/360 $4,500,000
51170 St. Petersburg FL 33714 7.250% ACT/360 $2,320,000
51172 Las Vegas NV 89128 7.000% ACT/360 $1,675,000
51173 Roswell NM 88201 7.500% ACT/360 $1,450,000
51174 North Las Vegas NV 89031 7.000% ACT/360 $1,687,000
51175 Fairbault MN 55021 7.100% ACT/360 $1,664,000
51176 St. Cloud MN 56304 7.100% ACT/360 $1,600,000
51177 Beaver Dam WI 53916 7.100% ACT/360 $2,360,000
51178 Monroe WI 53566 7.100% ACT/360 $1,333,000
51179 Pulaski WI 54162 7.100% ACT/360 $1,136,000
51180 Rice Lake WI 54868 7.100% ACT/360 $1,102,000
51181 Brillion WI 54123 7.100% ACT/360 $1,071,000
51182 Alexandria MN 56308 7.100% ACT/360 $600,000
51183 Lake City MN 55041 7.100% ACT/360 $592,000
51184 Albany MN 56307 7.100% ACT/360 $280,000
51185 Hales Corners WI 53130 7.000% ACT/360 $1,317,000
51188 San Francisco CA 94122 7.700% ACT/360 $440,000
51189 St. Paul MN 55105 7.000% ACT/360 $1,144,000
51190 St. Anthony MN 55421 7.150% ACT/360 $1,308,000
51192 Reno NV 89509 6.690% ACT/360 $10,000,000
51196 Los Angeles CA 90025 7.578% ACT/360 $1,800,000
51197 Chula Vista CA 91910 6.826% ACT/360 $3,100,000
51198 Salem OR 97305 7.074% ACT/360 $1,975,000
51199 Los Angeles CA 90027 7.207% ACT/360 $1,331,250
51201 Los Angeles CA 90011 7.107% ACT/360 $1,407,000
51202 San Luis Obispo CA 93405 7.493% ACT/360 $1,300,000
51203 Boise ID 83705 7.543% ACT/360 $600,000
51204 Nampa ID 83651 7.543% ACT/360 $300,000
51205 Sterling Heights MI 48312 7.353% ACT/360 $1,905,000
51207 Riverside CA 92505 7.336% ACT/360 $825,000
51209 Indio CA 92201 7.036% ACT/360 $4,600,000
51210 San Mateo CA 94402 6.997% 30/360 $1,100,000
51211 Sun City AZ 85351 7.423% ACT/360 $1,312,605
51212 Jackson CA 95642 6.886% ACT/360 $4,370,000
51213 Sunnyvale CA 94086 7.073% ACT/360 $5,000,000
51215 Van Nuys CA 91406 7.123% ACT/360 $2,000,000
51217 Rancho Cucamonga CA 91701 7.500% ACT/360 $2,200,000
51219 Huntington Beach CA 92646 6.906% ACT/360 $5,500,000
51220 Concord CA 94520 7.150% ACT/360 $2,450,000
51221 Anaheim CA 92802 6.900% ACT/360 $3,000,000
51224 Minneapolis MN 55404 7.650% ACT/360 $800,000
51227 Fremont CA 94538 7.520% 30/360 $3,625,000
51228 Santa Monica CA 90401 7.345% ACT/360 $2,000,000
51230 Woodland CA 95776 7.378% 30/360 $1,250,000
51231 Commerce TX 75428 7.870% ACT/360 $375,000
51233 St. Paul MN 55105 7.094% ACT/360 $1,250,000
51235 Deerfield IL 60015 7.234% ACT/360 $1,350,000
51236 Santa Clara CA 95054 7.215% ACT/360 $1,350,000
51237 San Diego CA 92121 7.167% ACT/360 $1,150,000
51238 Van Nuys CA 91401 7.382% 30/360 $1,600,000
51239 Colorado Springs CO 80910 7.194% ACT/360 $1,687,500
51240 San Clemente CA 92672 6.895% ACT/360 $1,000,000
51241 Los Altos CA 94022 7.268% ACT/360 $1,600,000
51242 Anaheim CA 92804 7.164% ACT/360 $1,100,000
51243 San Francisco CA 94105 6.799% ACT/360 $2,500,000
51244 Bloomingdale IL 60108 6.995% ACT/360 $4,200,000
51245 Austin TX 78722 6.918% ACT/360 $1,720,000
51246 Los Angeles CA 90057 6.799% ACT/360 $1,500,000
51248 Phoenix AZ 85018 6.890% ACT/360 $1,012,500
51249 Walnut Creek CA 94549 6.714% ACT/360 $2,000,000
51250 Santa Ana CA 92705 6.740% ACT/360 $2,047,500
51251 San Francisco CA 94109 6.664% ACT/360 $1,950,000
51253 La Verne CA 91750 7.040% ACT/360 $2,625,000
51254 Palo Alto CA 94301 6.790% ACT/360 $8,800,000
51255 Naperville IL 60540 6.740% ACT/360 $3,075,000
51256 Union City CA 94587 6.990% ACT/360 $2,500,000
51258 Scottsdale AZ 85260 7.064% ACT/360 $2,000,000
51259 Louisville CO 80027 6.642% ACT/360 $1,400,000
51261 Los Angeles CA 90027 6.640% ACT/360 $3,500,000
51262 Pleasant Hill CA 94523 7.192% ACT/360 $1,480,000
51263 El Monte CA 91732 6.692% ACT/360 $2,400,000
51264 Anaheim CA 92805 6.442% ACT/360 $1,500,000
51265 San Diego CA 92126 6.692% ACT/360 $1,290,000
51266 San Diego CA 92110 6.692% ACT/360 $1,350,000
51267 San Diego CA 92110 6.692% ACT/360 $1,650,000
51268 San Diego CA 92110 6.692% ACT/360 $1,100,000
51269 Chula Vista CA 91910 6.692% ACT/360 $755,000
51271 Chicago IL 60626 6.840% ACT/360 $1,000,000
51273 Minnetonka MN 55305 6.934% ACT/360 $1,000,000
51274 Encino CA 91316 7.479% ACT/360 $900,000
51275 Calabasas CA 91302 7.141% ACT/360 $1,350,000
51277 Irvine CA 92618 7.197% ACT/360 $850,000
51281 Phoenix AZ 85017 6.431% ACT/360 $1,840,000
51282 Boise ID 83705 7.307% ACT/360 $820,000
51283 Chico CA 95928 7.330% ACT/360 $855,000
51284 Santa Cruz CA 95060 7.375% ACT/360 $1,300,000
51285 North Las Vegas NV 89030 6.630% ACT/360 $2,415,000
51286 San Gabriel CA 91776 6.990% ACT/360 $33,000,000
51287 Montebello CA 90640 6.314% ACT/360 $4,200,000
51288 West Jordan UT 84088 7.000% ACT/360 $1,575,000
51289 Tustin CA 92680 7.000% ACT/360 $11,000,000
51291 Minneapolis MN 55414 6.487% ACT/360 $3,510,000
51293 Boulder CO 80301 6.937% ACT/360 $700,000
51294 Portland OR 97219 7.000% ACT/360 $1,875,000
51295 Columbia MD 21046 6.422% ACT/360 $2,075,000
51296 Pasedena CA 91106 6.325% ACT/360 $1,350,000
51297 Provo UT 84604 7.000% ACT/360 $2,944,000
51298 West Valley City UT 84088 7.000% ACT/360 $1,000,000
51299 Millbrae CA 94030 7.125% ACT/360 $2,500,000
51300 St. Paul MN 55105 7.250% ACT/360 $318,000
51301 St. Paul MN 55105 7.250% ACT/360 $525,000
51302 Minneapolis MN 55403 7.000% ACT/360 $1,000,000
51303 Youngtown AZ 85363 7.000% ACT/360 $1,400,000
51304 Temecula CA 92590 7.235% ACT/360 $505,000
51308 Calabasas CA 91302 7.500% ACT/360 $1,365,000
51309 Laguna Hills CA 92653 6.196% ACT/360 $2,300,000
51310 Scotts Valley CA 95066 7.125% ACT/360 $1,500,000
51311 San Diego CA 92131 7.000% ACT/360 $1,650,000
51312 Temple Terrace FL 33617 6.750% ACT/360 $2,118,750
51313 San Rafael CA 94903 7.250% ACT/360 $1,250,000
51316 La Jolla CA 92037 7.375% ACT/360 $3,160,000
51317 San Leandro CA 94578 8.000% ACT/360 $840,000
51318 Minneapolis MN 55408 7.250% ACT/360 $425,000
51319 St. Paul MN 55104 7.250% ACT/360 $860,000
51320 El Cajon CA 92021 7.120% ACT/360 $1,600,000
51322 Oregon City OR 97045 7.000% ACT/360 $1,630,500
51323 Minneapolis MN 55405 7.250% ACT/360 $553,000
51324 Redding CA 96001 7.850% ACT/360 $490,000
51325 Oakland CA 94618 7.500% ACT/360 $995,000
51328 Sacramento CA 95823 7.250% ACT/360 $1,900,000
51329 Fort Collins CO 80525 7.125% ACT/360 $2,000,000
51334 La Mirada CA 90638 7.250% ACT/360 $2,290,000
51336 San Francisco CA 94123 7.250% ACT/360 $750,000
51338 Sonora CA 95370 7.000% ACT/360 $1,500,000
51339 St Paul MN 55105 7.250% ACT/360 $508,000
51340 Shakopee MN 55379 7.300% ACT/360 $487,500
51341 Minneapolis MN 55405 7.250% ACT/360 $738,000
51342 St Paul MN 55105 7.250% ACT/360 $488,000
51343 Minneapolis MN 55418 7.300% ACT/360 $637,500
51346 San Jose CA 95131 7.126% 30/360 $3,150,000
51347 Phoenix AZ 85018 7.500% ACT/360 $544,000
51348 Los Angeles CA 90064 7.000% ACT/360 $2,250,000
51349 Pasadena CA 91107 7.500% ACT/360 $2,300,000
51351 Thousand Oaks CA 91361 7.125% ACT/360 $2,800,000
51353 Albuquerque NM 87111 8.000% ACT/360 $420,000
51354 Phoenix AZ 85017 7.000% ACT/360 $2,200,000
51355 Minturn CO 81645 7.375% ACT/360 $950,000
51356 Sacramento CA 95822 7.875% ACT/360 $966,000
51357 North Hollywood CA 91601 7.000% ACT/360 $1,160,000
51358 Union City CA 94587 7.250% ACT/360 $2,470,000
51365 Napa CA 94558 7.300% ACT/360 $1,218,000
51366 Everett WA 98208 7.250% ACT/360 $8,000,000
51367 Layton UT 84041 8.000% ACT/360 $2,600,000
51368 Concord CA 94520 7.580% ACT/360 $1,500,000
51371 Flagstaff AZ 86001 7.650% ACT/360 $575,000
51372 Santa Ana CA 92701 7.500% ACT/360 $1,200,000
51373 Monterey CA 93940 7.350% ACT/360 $945,000
51376 Arvada CO 80002 7.250% ACT/360 $1,125,000
51377 Canyon Country CA 91351 7.000% ACT/360 $1,500,000
51378 Lakewood CO 80232 8.500% ACT/360 $847,000
51380 Madera CA 93637 7.875% ACT/360 $735,000
51381 Madera CA 93637 7.875% ACT/360 $862,500
51382 Arcadia CA 91007 7.350% ACT/360 $1,150,000
51383 Salt Lake City UT 84116 7.850% ACT/360 $40,700,000
51385 Las Vegas NV 89117 7.251% ACT/360 $18,180,000
51386 Las Vegas NV 89115 7.251% ACT/360 $44,000,000
51387 Sunnyvale CA 94702 8.000% ACT/360 $2,475,000
51388 Chico CA 95973 7.580% ACT/360 $1,575,000
51390 Tucson AZ 85711 7.880% ACT/360 $862,500
51395 Yuma AZ 85364 7.650% ACT/360 $1,500,000
51396 Lake Forest CA 92630 8.000% ACT/360 $500,000
51397 Encinitas CA 92024 7.875% ACT/360 $1,000,000
51398 Acton CA 93510 8.150% ACT/360 $550,000
51399 Fremont CA 94538 8.050% ACT/360 $560,000
51400 Flagstaff AZ 86001 8.150% ACT/360 $505,000
51401 Aspen CO 81611 7.310% ACT/360 $5,000,000
51402 Irvine CA 92612 7.960% ACT/360 $1,000,000
51413 Eden Prairie MN 55344 8.075% ACT/360 $712,500
51415 Woodland Park CO 80866 8.600% ACT/360 $435,000
51419 Tucson AZ 85719 8.375% ACT/360 $416,000
51423 Marina Del Rey CA 90066 7.425% ACT/360 $6,750,000
51425 Modesto CA 95350 7.650% ACT/360 $800,000
51426 Sanger CA 93657 8.125% ACT/360 $1,027,500
51428 Multiple Multiple 7.851% ACT/360 $40,350,000
51429 Multiple Multiple 7.821% ACT/360 $55,450,000
51434 San Diego CA 92123 8.145% ACT/360 $1,000,000
51435 Marysville CA 95901 8.000% ACT/360 $590,000
51442 Los Angeles CA 90034 7.125% ACT/360 $3,350,000
<CAPTION>
REMAINING
TERM TO STATED STATED PRIMARY MASTER
CUT-OFF MATURITY MATURITY DUE MONTHLY ADMIN. SERVICING SERVICING OWNERSHIP
LOAN NUMBER BALANCE (MONTHS) DATE DATE PAYMENT FEE FEE FEE INTEREST
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
50099 $2,745,422 102 8/1/07 1st $21,138 0.143% 0.100% 0.14075% Fee Simple
50121 $1,039,767 66 8/1/04 1st $7,962 0.168% 0.125% 0.16575% Fee Simple
50148 $12,513,372 103 9/1/07 1st $90,801 0.143% 0.100% 0.14075% Fee Simple
50166 $28,806,130 105 11/1/07 1st $203,770 0.093% 0.050% 0.09075% Fee Simple
50167 $26,133,397 105 11/1/07 1st $184,864 0.093% 0.050% 0.09075% Fee Simple
50207 $3,175,839 163 9/1/12 1st $23,630 0.143% 0.100% 0.14075% Fee Simple
50312 $7,090,058 106 12/1/07 1st $52,973 0.143% 0.100% 0.14075% Fee Simple
50319 $9,130,414 106 12/1/07 1st $81,559 0.203% 0.160% 0.20075% Fee Simple
50322 $5,979,296 106 12/1/07 1st $53,411 0.203% 0.160% 0.20075% Fee Simple
50331 $2,115,947 165 11/1/12 1st $15,391 0.143% 0.100% 0.14075% Fee Simple
50336 $1,543,683 105 11/1/07 1st $10,769 0.118% 0.075% 0.11575% Fee Simple
50391 $3,943,320 107 1/1/08 1st $29,508 0.143% 0.100% 0.14075% Fee Simple
50499 $2,681,072 109 3/1/08 1st $18,796 0.143% 0.100% 0.14075% Fee Simple
50509 $1,418,795 107 1/1/08 1st $9,798 0.143% 0.100% 0.14075% Fee Simple
50563 $6,388,917 109 3/1/08 1st $43,262 0.143% 0.100% 0.14075% Fee Simple
50648 $4,359,715 167 1/1/13 1st $30,195 0.143% 0.100% 0.14075% Fee Simple
50668 $6,286,354 109 3/1/08 1st $40,995 0.143% 0.100% 0.14075% Fee Simple
50695 $52,538,304 107 1/1/08 1st $400,549 0.820% 0.777% 0.81775% Fee Simple
50776 $3,402,817 110 4/1/08 1st $23,395 0.103% 0.060% 0.10075% Fee Simple
50788 $1,095,401 116 10/1/08 1st $7,677 0.143% 0.100% 0.14075% Fee Simple
50825 $10,248,293 113 7/1/08 1st $67,629 0.128% 0.085% 0.12575% Fee Simple
50828 $3,914,704 76 6/1/05 1st $32,339 0.393% 0.350% 0.39075% Fee Simple
50852 $2,241,726 115 9/1/08 1st $14,773 0.143% 0.100% 0.14075% Fee Simple
50853 $1,412,101 112 6/1/08 1st $9,543 0.143% 0.100% 0.14075% Fee Simple
50883 $15,941,598 120 2/1/09 1st $105,376 0.143% 0.100% 0.14075% Fee Simple
50888 $2,319,520 174 8/1/13 1st $15,590 0.143% 0.100% 0.14075% Fee Simple
50894 $4,982,021 115 9/1/08 1st $33,131 0.143% 0.100% 0.14075% Fee Simple
50902 $2,614,277 114 8/1/08 1st $17,659 0.093% 0.050% 0.09075% Fee Simple
50904 $1,633,041 114 8/1/08 1st $11,672 0.143% 0.100% 0.14075% Fee Simple
50912 $3,131,038 114 8/1/08 1st $23,422 0.143% 0.100% 0.14075% Fee Simple
50913 $2,882,543 114 8/1/08 1st $21,563 0.143% 0.100% 0.14075% Fee Simple
50914 $2,186,756 114 8/1/08 1st $16,358 0.143% 0.100% 0.14075% Fee Simple
50915 $3,876,523 114 8/1/08 1st $28,998 0.143% 0.100% 0.14075% Fee Simple
50929 $3,576,598 114 8/1/08 1st $25,859 0.143% 0.100% 0.14075% Fee Simple
50930 $5,350,043 115 9/1/08 1st $41,543 0.143% 0.100% 0.14075% Fee Simple
50933 $3,381,120 115 9/1/08 1st $24,248 0.143% 0.100% 0.14075% Fee Simple
50935 $2,907,404 114 8/1/08 1st $19,231 0.143% 0.100% 0.14075% Fee Simple
50937 $2,488,796 116 10/1/08 1st $17,510 0.143% 0.100% 0.14075% Fee Simple
50941 $4,182,752 114 8/1/08 1st $28,197 0.143% 0.100% 0.14075% Fee Simple
50942 $1,994,741 176 10/1/13 1st $13,474 0.143% 0.100% 0.14075% Fee Simple
50960 $658,265 116 10/1/08 1st $4,447 0.393% 0.350% 0.39075% Fee Simple
50969 $2,590,175 115 9/1/08 1st $16,881 0.143% 0.100% 0.14075% Leasehold
50975 $2,494,858 117 11/1/08 1st $16,717 0.143% 0.100% 0.14075% Fee Simple
50979 $2,488,753 115 9/1/08 1st $19,578 0.143% 0.100% 0.14075% Fee Simple
50986 $3,743,023 114 8/1/08 1st $24,312 0.143% 0.100% 0.14075% Fee Simple
50990 $5,987,004 117 11/1/08 1st $39,316 0.143% 0.100% 0.14075% Fee Simple
50993 $1,722,091 175 9/1/13 1st $15,661 0.143% 0.100% 0.14075% Fee Simple
50994 $1,722,217 175 9/1/13 1st $15,710 0.143% 0.100% 0.14075% Fee Simple
50999 $4,319,405 114 8/1/08 1st $31,064 0.143% 0.100% 0.14075% Fee Simple
51001 $3,032,191 116 10/1/08 1st $20,656 0.143% 0.100% 0.14075% Fee Simple
51004 $5,248,758 116 10/1/08 1st $33,348 0.143% 0.100% 0.14075% Fee Simple
51006 $17,154,933 115 9/1/08 1st $123,464 0.143% 0.100% 0.14075% Fee Simple
51007 $5,265,145 114 8/1/08 1st $37,866 0.143% 0.100% 0.14075% Fee Simple
51008 $9,970,394 116 10/1/08 1st $64,395 0.143% 0.100% 0.14075% Fee Simple
51009 $607,883 115 9/1/08 1st $4,099 0.293% 0.250% 0.29075% Fee Simple
51010 $8,961,029 114 8/1/08 1st $59,184 0.143% 0.100% 0.14075% Fee Simple
51012 $1,411,053 117 11/1/08 1st $9,407 0.143% 0.100% 0.14075% Fee Simple
51013 $3,955,964 110 4/1/08 1st $30,844 0.143% 0.100% 0.14075% Fee Simple
51014 $4,303,852 116 10/1/08 1st $27,485 0.143% 0.100% 0.14075% Fee Simple
51015 $3,481,612 115 9/1/08 1st $25,615 0.143% 0.100% 0.14075% Fee Simple
51016 $3,310,913 114 8/1/08 1st $22,054 0.143% 0.100% 0.14075% Fee Simple
51018 $3,388,378 115 9/1/08 1st $22,987 0.143% 0.100% 0.14075% Fee Simple
51023 $441,651 116 10/1/08 1st $2,820 0.143% 0.100% 0.14075% Fee Simple
51025 $3,883,306 114 8/1/08 1st $25,764 0.143% 0.100% 0.14075% Fee Simple
51026 $2,175,462 57 11/1/03 1st $45,335 0.143% 0.100% 0.14075% Fee Simple
51027 $2,995,527 115 9/1/08 1st $19,305 0.143% 0.100% 0.14075% Fee Simple
51028 $4,224,096 115 9/1/08 1st $27,613 0.143% 0.100% 0.14075% Fee Simple
51029 $11,652,952 114 8/1/08 1st $79,181 0.143% 0.100% 0.14075% Fee Simple
51033 $5,339,194 115 9/1/08 1st $34,409 0.143% 0.100% 0.14075% Fee Simple
51034 $3,097,551 116 10/1/08 1st $20,664 0.143% 0.100% 0.14075% Fee Simple
51035 $2,760,896 115 9/1/08 1st $17,557 0.143% 0.100% 0.14075% Fee Simple
51036 $1,673,270 115 9/1/08 1st $10,641 0.143% 0.100% 0.14075% Fee Simple
51038 $2,192,129 115 9/1/08 1st $14,607 0.143% 0.100% 0.14075% Fee Simple
51039 $4,485,702 117 11/1/08 1st $32,526 0.143% 0.100% 0.14075% Fee Simple
51041 $5,415,990 114 8/1/08 1st $35,501 0.143% 0.100% 0.14075% Fee Simple
51042 $2,090,159 116 10/1/08 1st $14,403 0.143% 0.100% 0.14075% Fee Simple
51043 $4,059,921 115 9/1/08 1st $26,688 0.143% 0.100% 0.14075% Fee Simple
51045 $3,352,666 117 11/1/08 1st $21,949 0.143% 0.100% 0.14075% Fee Simple
51046 $8,214,903 116 10/1/08 1st $52,462 0.143% 0.100% 0.14075% Fee Simple
51048 $3,182,062 115 9/1/08 1st $22,719 0.143% 0.100% 0.14075% Fee Simple
51053 $3,725,019 115 9/1/08 1st $23,689 0.143% 0.100% 0.14075% Fee Simple
51055 $4,503,004 115 9/1/08 1st $29,407 0.143% 0.100% 0.14075% Fee Simple
51056 $5,185,159 116 10/1/08 1st $33,969 0.143% 0.100% 0.14075% Fee Simple
51058 $2,038,756 175 9/1/13 1st $14,705 0.143% 0.100% 0.14075% Fee Simple
51060 $9,261,587 116 10/1/08 1st $67,581 0.143% 0.100% 0.14075% Fee Simple
51061 $2,130,260 117 11/1/08 1st $14,998 0.143% 0.100% 0.14075% Fee Simple
51065 $2,879,266 176 10/1/13 1st $22,501 0.143% 0.100% 0.14075% Fee Simple
51066 $3,424,371 116 10/1/08 1st $23,941 0.143% 0.100% 0.14075% Fee Simple
51068 $1,469,448 176 10/1/13 1st $11,501 0.143% 0.100% 0.14075% Fee Simple
51069 $3,982,388 116 10/1/08 1st $28,246 0.143% 0.100% 0.14075% Fee Simple
51072 $690,307 176 10/1/13 1st $5,506 0.293% 0.250% 0.29075% Fee Simple
51073 $623,680 176 10/1/13 1st $4,975 0.293% 0.250% 0.29075% Fee Simple
51074 $3,692,026 117 11/1/08 1st $24,294 0.143% 0.100% 0.14075% Fee Simple
51075 $2,552,203 116 10/1/08 1st $16,299 0.143% 0.100% 0.14075% Fee Simple
51076 $1,784,741 117 11/1/08 1st $12,502 0.143% 0.100% 0.14075% Fee Simple
51077 $3,489,958 116 10/1/08 1st $22,817 0.143% 0.100% 0.14075% Fee Simple
51079 $3,240,967 116 10/1/08 1st $21,448 0.143% 0.100% 0.14075% Fee Simple
51080 $1,770,313 116 10/1/08 1st $11,941 0.143% 0.100% 0.14075% Fee Simple
51081 $4,696,909 116 10/1/08 1st $31,083 0.143% 0.100% 0.14075% Fee Simple
51086 $1,792,168 116 10/1/08 1st $12,780 0.143% 0.100% 0.14075% Fee Simple
51087 $3,415,833 116 10/1/08 1st $22,925 0.143% 0.100% 0.14075% Fee Simple
51090 $2,411,028 117 11/1/08 1st $17,194 0.143% 0.100% 0.14075% Fee Simple
51092 $6,081,800 116 10/1/08 1st $39,160 0.143% 0.100% 0.14075% Fee Simple
51093 $4,489,488 117 11/1/08 1st $28,591 0.143% 0.100% 0.14075% Fee Simple
51094 $3,482,727 177 11/1/13 1st $23,219 0.143% 0.100% 0.14075% Fee Simple
51096 $2,318,794 117 11/1/08 1st $14,864 0.143% 0.100% 0.14075% Fee Simple
51101 $5,209,122 117 11/1/08 1st $34,729 0.143% 0.100% 0.14075% Fee Simple
51103 $1,996,119 117 11/1/08 1st $13,671 0.143% 0.100% 0.14075% Fee Simple
51104 $4,633,654 115 9/1/08 1st $31,093 0.143% 0.100% 0.14075% Fee Simple
51105 $1,393,151 176 10/1/13 1st $10,112 0.143% 0.100% 0.14075% Fee Simple
51106 $3,695,533 118 12/1/08 1st $24,928 0.143% 0.100% 0.14075% Fee Simple
51107 $6,991,873 118 12/1/08 1st $47,752 0.143% 0.100% 0.14075% Fee Simple
51109 $5,319,872 116 10/1/08 1st $37,486 0.143% 0.100% 0.14075% Fee Simple
51111 $9,080,764 117 11/1/08 1st $60,207 0.098% 0.055% 0.09575% Fee Simple
51115 $2,145,862 117 11/1/08 1st $14,740 0.143% 0.100% 0.14075% Fee Simple
51116 $2,225,532 117 11/1/08 1st $15,062 0.143% 0.100% 0.14075% Fee Simple
51117 $1,837,964 118 12/1/08 1st $12,740 0.143% 0.100% 0.14075% Fee Simple
51118 $6,985,413 117 11/1/08 1st $46,571 0.143% 0.100% 0.14075% Fee Simple
51119 $2,974,046 117 11/1/08 1st $21,090 0.143% 0.100% 0.14075% Fee Simple
51120 $1,744,302 117 11/1/08 1st $12,509 0.143% 0.100% 0.14075% Fee Simple
51121 $9,253,802 117 11/1/08 1st $71,624 0.143% 0.100% 0.14075% Fee Simple
51122 $2,791,743 117 11/1/08 1st $20,920 0.143% 0.100% 0.14075% Fee Simple
51123 $748,537 117 11/1/08 1st $5,116 0.293% 0.250% 0.29075% Fee Simple
51124 $1,596,879 117 11/1/08 1st $10,915 0.143% 0.100% 0.14075% Fee Simple
51125 $1,422,183 117 11/1/08 1st $9,673 0.143% 0.100% 0.14075% Fee Simple
51127 $3,891,873 117 11/1/08 1st $25,947 0.143% 0.100% 0.14075% Fee Simple
51129 $5,033,155 117 11/1/08 1st $35,692 0.143% 0.100% 0.14075% Fee Simple
51130 $1,783,814 177 11/1/13 1st $16,669 0.143% 0.100% 0.14075% Fee Simple
51131 $10,977,077 117 11/1/08 1st $73,183 0.143% 0.100% 0.14075% Fee Simple
51132 $1,796,245 118 12/1/08 1st $12,722 0.143% 0.100% 0.14075% Leasehold
51134 $2,516,839 118 12/1/08 1st $16,766 0.143% 0.100% 0.14075% Fee Simple
51135 $3,193,332 117 11/1/08 1st $21,290 0.143% 0.100% 0.14075% Fee Simple
51136 $3,089,715 117 11/1/08 1st $20,806 0.143% 0.100% 0.14075% Fee Simple
51137 $3,829,161 129 11/1/09 1st $29,186 0.143% 0.100% 0.14075% Fee Simple
51138 $4,989,608 117 11/1/08 1st $33,299 0.143% 0.100% 0.14075% Fee Simple
51139 $2,195,410 118 12/1/08 1st $15,549 0.143% 0.100% 0.14075% Fee Simple
51143 $3,492,706 117 11/1/08 1st $23,286 0.143% 0.100% 0.14075% Fee Simple
51145 $2,993,748 117 11/1/08 1st $19,959 0.143% 0.100% 0.14075% Fee Simple
51146 $1,696,457 117 11/1/08 1st $11,310 0.143% 0.100% 0.14075% Fee Simple
51147 $2,893,957 117 11/1/08 1st $19,294 0.143% 0.100% 0.14075% Fee Simple
51148 $2,482,290 117 11/1/08 1st $18,601 0.143% 0.100% 0.14075% Fee Simple
51149 $2,143,335 117 11/1/08 1st $15,714 0.143% 0.100% 0.14075% Fee Simple
51150 $5,384,476 117 11/1/08 1st $40,788 0.143% 0.100% 0.14075% Fee Simple
51151 $2,195,888 178 12/1/13 1st $16,258 0.143% 0.100% 0.14075% Fee Simple
51156 $3,139,493 117 11/1/08 1st $22,264 0.143% 0.100% 0.14075% Fee Simple
51157 $2,790,945 117 11/1/08 1st $20,077 0.143% 0.100% 0.14075% Fee Simple
51158 $4,789,997 117 11/1/08 1st $31,935 0.143% 0.100% 0.14075% Fee Simple
51159 $1,342,877 117 11/1/08 1st $10,605 0.143% 0.100% 0.14075% Fee Simple
51160 $6,836,587 116 10/1/08 1st $44,925 0.143% 0.100% 0.14075% Fee Simple
51161 $739,974 117 11/1/08 1st $5,727 0.143% 0.100% 0.14075% Fee Simple
51165 $3,692,937 117 11/1/08 1st $26,482 0.143% 0.100% 0.14075% Fee Simple
51166 $917,077 117 11/1/08 1st $6,650 0.143% 0.100% 0.14075% Fee Simple
51167 $3,991,665 117 11/1/08 1st $26,612 0.143% 0.100% 0.14075% Fee Simple
51169 $4,490,984 177 11/1/13 1st $30,393 0.143% 0.100% 0.14075% Fee Simple
51170 $2,315,474 117 11/1/08 1st $15,826 0.143% 0.100% 0.14075% Fee Simple
51172 $1,671,510 117 11/1/08 1st $11,144 0.143% 0.100% 0.14075% Fee Simple
51173 $1,448,649 119 1/1/09 1st $10,715 0.143% 0.100% 0.14075% Fee Simple
51174 $1,683,485 117 11/1/08 1st $11,224 0.143% 0.100% 0.14075% Fee Simple
51175 $1,660,622 117 11/1/08 1st $11,183 0.143% 0.100% 0.14075% Fee Simple
51176 $1,596,752 117 11/1/08 1st $10,753 0.143% 0.100% 0.14075% Fee Simple
51177 $2,355,209 117 11/1/08 1st $15,860 0.143% 0.100% 0.14075% Fee Simple
51178 $1,330,294 117 11/1/08 1st $8,958 0.143% 0.100% 0.14075% Fee Simple
51179 $1,133,694 117 11/1/08 1st $7,634 0.143% 0.100% 0.14075% Fee Simple
51180 $1,099,763 117 11/1/08 1st $7,406 0.143% 0.100% 0.14075% Fee Simple
51181 $1,068,826 117 11/1/08 1st $7,197 0.143% 0.100% 0.14075% Fee Simple
51182 $598,782 117 11/1/08 1st $4,032 0.143% 0.100% 0.14075% Fee Simple
51183 $590,798 117 11/1/08 1st $3,978 0.143% 0.100% 0.14075% Fee Simple
51184 $279,432 117 11/1/08 1st $1,882 0.143% 0.100% 0.14075% Fee Simple
51185 $1,314,256 117 11/1/08 1st $8,762 0.143% 0.100% 0.14075% Fee Simple
51188 $439,242 117 11/1/08 1st $3,137 0.143% 0.100% 0.14075% Fee Simple
51189 $1,141,616 117 11/1/08 1st $7,611 0.143% 0.100% 0.14075% Fee Simple
51190 $1,305,379 117 11/1/08 1st $8,834 0.143% 0.100% 0.14075% Fee Simple
51192 $9,961,559 115 9/1/08 1st $64,461 0.143% 0.100% 0.14075% Fee Simple
51196 $1,793,518 114 8/1/08 1st $12,682 0.143% 0.100% 0.14075% Fee Simple
51197 $3,091,166 116 10/1/08 1st $20,263 0.143% 0.100% 0.14075% Fee Simple
51198 $1,966,856 114 8/1/08 1st $13,238 0.143% 0.100% 0.14075% Fee Simple
51199 $1,325,949 114 8/1/08 1st $9,043 0.143% 0.100% 0.14075% Fee Simple
51201 $1,401,248 114 8/1/08 1st $9,462 0.143% 0.100% 0.14075% Fee Simple
51202 $1,292,053 114 8/1/08 1st $9,601 0.143% 0.100% 0.14075% Fee Simple
51203 $596,369 114 8/1/08 1st $4,451 0.143% 0.100% 0.14075% Fee Simple
51204 $298,184 114 8/1/08 1st $2,225 0.143% 0.100% 0.14075% Fee Simple
51205 $1,891,124 113 7/1/08 1st $13,896 0.143% 0.100% 0.14075% Fee Simple
51207 $821,826 114 8/1/08 1st $5,676 0.143% 0.100% 0.14075% Fee Simple
51209 $4,580,842 114 8/1/08 1st $30,715 0.143% 0.100% 0.14075% Fee Simple
51210 $1,078,866 174 8/1/13 1st $9,885 0.143% 0.100% 0.14075% Leasehold
51211 $1,307,673 114 8/1/08 1st $9,109 0.143% 0.100% 0.14075% Fee Simple
51212 $4,351,082 114 8/1/08 1st $28,740 0.143% 0.100% 0.14075% Fee Simple
51213 $4,966,818 114 8/1/08 1st $35,572 0.143% 0.100% 0.14075% Fee Simple
51215 $1,991,858 114 8/1/08 1st $13,472 0.143% 0.100% 0.14075% Fee Simple
51217 $2,186,570 114 8/1/08 1st $16,258 0.143% 0.100% 0.14075% Fee Simple
51219 $5,476,312 114 8/1/08 1st $36,245 0.143% 0.100% 0.14075% Fee Simple
51220 $2,440,096 114 8/1/08 1st $16,547 0.143% 0.100% 0.14075% Leasehold
51221 $2,987,059 114 8/1/08 1st $19,758 0.143% 0.100% 0.14075% Fee Simple
51224 $795,261 114 8/1/08 1st $5,990 0.143% 0.100% 0.14075% Fee Simple
51227 $3,569,667 175 9/1/13 1st $33,645 0.143% 0.100% 0.14075% Fee Simple
51228 $1,993,483 115 9/1/08 1st $13,773 0.143% 0.100% 0.14075% Fee Simple
51230 $1,230,685 175 9/1/13 1st $11,501 0.143% 0.100% 0.14075% Fee Simple
51231 $373,207 115 9/1/08 1st $2,862 0.143% 0.100% 0.14075% Fee Simple
51233 $1,245,655 115 9/1/08 1st $8,395 0.143% 0.100% 0.14075% Fee Simple
51235 $1,345,472 115 9/1/08 1st $9,195 0.143% 0.100% 0.14075% Fee Simple
51236 $1,345,450 115 9/1/08 1st $9,177 0.143% 0.100% 0.14075% Fee Simple
51237 $1,146,076 115 9/1/08 1st $7,780 0.143% 0.100% 0.14075% Fee Simple
51238 $1,575,286 175 9/1/13 1st $14,725 0.143% 0.100% 0.14075% Fee Simple
51239 $1,681,782 115 9/1/08 1st $11,448 0.143% 0.100% 0.14075% Fee Simple
51240 $996,345 115 9/1/08 1st $6,583 0.143% 0.100% 0.14075% Fee Simple
51241 $1,594,681 115 9/1/08 1st $10,934 0.143% 0.100% 0.14075% Fee Simple
51242 $1,096,244 115 9/1/08 1st $7,440 0.143% 0.100% 0.14075% Fee Simple
51243 $2,490,643 115 9/1/08 1st $16,296 0.143% 0.100% 0.14075% Fee Simple
51244 $4,185,030 115 9/1/08 1st $27,929 0.143% 0.100% 0.14075% Fee Simple
51245 $1,713,750 115 9/1/08 1st $11,349 0.143% 0.100% 0.14075% Fee Simple
51246 $1,494,386 115 9/1/08 1st $9,778 0.143% 0.100% 0.14075% Fee Simple
51248 $1,008,795 115 9/1/08 1st $6,662 0.143% 0.100% 0.14075% Fee Simple
51249 $1,988,064 115 9/1/08 1st $13,773 0.143% 0.100% 0.14075% Fee Simple
51250 $2,039,725 115 9/1/08 1st $13,266 0.143% 0.100% 0.14075% Fee Simple
51251 $1,942,456 115 9/1/08 1st $12,536 0.143% 0.100% 0.14075% Fee Simple
51253 $2,615,749 115 9/1/08 1st $17,535 0.143% 0.100% 0.14075% Fee Simple
51254 $8,766,991 115 9/1/08 1st $57,311 0.143% 0.100% 0.14075% Fee Simple
51255 $3,063,323 115 9/1/08 1st $19,924 0.143% 0.100% 0.14075% Fee Simple
51256 $2,491,078 115 9/1/08 1st $16,616 0.143% 0.100% 0.14075% Fee Simple
51258 $1,992,994 115 9/1/08 1st $13,392 0.143% 0.100% 0.14075% Fee Simple
51259 $1,394,555 115 9/1/08 1st $8,980 0.143% 0.100% 0.14075% Fee Simple
51261 $3,486,381 115 9/1/08 1st $22,446 0.143% 0.100% 0.14075% Fee Simple
51262 $1,474,982 115 9/1/08 1st $10,038 0.143% 0.100% 0.14075% Fee Simple
51263 $2,390,779 115 9/1/08 1st $15,474 0.143% 0.100% 0.14075% Fee Simple
51264 $1,493,878 115 9/1/08 1st $9,424 0.143% 0.100% 0.14075% Fee Simple
51265 $1,285,044 115 9/1/08 1st $8,317 0.143% 0.100% 0.14075% Fee Simple
51266 $1,344,813 115 9/1/08 1st $8,704 0.143% 0.100% 0.14075% Fee Simple
51267 $1,643,660 115 9/1/08 1st $10,638 0.143% 0.100% 0.14075% Fee Simple
51268 $1,095,774 115 9/1/08 1st $7,092 0.143% 0.100% 0.14075% Fee Simple
51269 $752,099 115 9/1/08 1st $4,868 0.143% 0.100% 0.14075% Fee Simple
51271 $996,295 115 9/1/08 1st $6,546 0.143% 0.100% 0.14075% Fee Simple
51273 $997,231 116 10/1/08 1st $6,609 0.143% 0.100% 0.14075% Fee Simple
51274 $897,857 116 10/1/08 1st $6,280 0.143% 0.100% 0.14075% Fee Simple
51275 $1,346,466 116 10/1/08 1st $9,110 0.143% 0.100% 0.14075% Fee Simple
51277 $847,809 116 10/1/08 1st $5,768 0.143% 0.100% 0.14075% Fee Simple
51281 $1,834,194 116 10/1/08 1st $11,547 0.143% 0.100% 0.14075% Fee Simple
51282 $817,950 116 10/1/08 1st $5,626 0.143% 0.100% 0.14075% Fee Simple
51283 $852,876 116 10/1/08 1st $5,879 0.143% 0.100% 0.14075% Fee Simple
51284 $1,294,701 116 10/1/08 1st $9,501 0.143% 0.100% 0.14075% Fee Simple
51285 $2,407,757 116 10/1/08 1st $15,471 0.143% 0.100% 0.14075% Fee Simple
51286 $32,909,986 116 10/1/08 1st $219,328 0.143% 0.100% 0.14075% Leasehold
51287 $4,178,944 116 10/1/08 1st $27,873 0.143% 0.100% 0.14075% Fee Simple
51288 $1,570,715 116 10/1/08 1st $10,479 0.143% 0.100% 0.14075% Fee Simple
51289 $10,970,076 116 10/1/08 1st $73,183 0.143% 0.100% 0.14075% Fee Simple
51291 $3,499,081 116 10/1/08 1st $22,156 0.143% 0.100% 0.14075% Fee Simple
51293 $698,063 116 10/1/08 1st $4,628 0.143% 0.100% 0.14075% Fee Simple
51294 $1,869,899 116 10/1/08 1st $12,474 0.143% 0.100% 0.14075% Fee Simple
51295 $2,068,438 116 10/1/08 1st $13,009 0.143% 0.100% 0.14075% Fee Simple
51296 $1,345,625 116 10/1/08 1st $8,378 0.143% 0.100% 0.14075% Fee Simple
51297 $2,935,991 116 10/1/08 1st $19,587 0.143% 0.100% 0.14075% Fee Simple
51298 $997,280 140 10/1/10 1st $6,653 0.143% 0.100% 0.14075% Fee Simple
51299 $2,493,426 116 10/1/08 1st $16,843 0.143% 0.100% 0.14075% Fee Simple
51300 $316,670 116 10/1/08 1st $2,299 0.143% 0.100% 0.14075% Fee Simple
51301 $522,805 116 10/1/08 1st $3,795 0.143% 0.100% 0.14075% Fee Simple
51302 $995,606 116 10/1/08 1st $7,068 0.143% 0.100% 0.14075% Fee Simple
51303 $1,396,192 116 10/1/08 1st $9,314 0.143% 0.100% 0.14075% Fee Simple
51304 $503,712 116 10/1/08 1st $3,440 0.143% 0.100% 0.14075% Fee Simple
51308 $1,361,769 116 10/1/08 1st $9,544 0.143% 0.100% 0.14075% Fee Simple
51309 $2,292,305 116 10/1/08 1st $14,081 0.143% 0.100% 0.14075% Fee Simple
51310 $1,496,056 116 10/1/08 1st $10,106 0.143% 0.100% 0.14075% Fee Simple
51311 $1,645,511 116 10/1/08 1st $10,977 0.143% 0.100% 0.14075% Fee Simple
51312 $2,112,591 116 10/1/08 1st $13,742 0.143% 0.100% 0.14075% Fee Simple
51313 $1,246,825 116 10/1/08 1st $8,527 0.143% 0.100% 0.14075% Fee Simple
51316 $3,152,249 116 10/1/08 1st $21,825 0.143% 0.100% 0.14075% Fee Simple
51317 $838,287 116 10/1/08 1st $6,164 0.143% 0.100% 0.14075% Fee Simple
51318 $423,223 116 10/1/08 1st $3,072 0.143% 0.100% 0.14075% Fee Simple
51319 $856,405 116 10/1/08 1st $6,216 0.143% 0.100% 0.14075% Fee Simple
51320 $1,595,787 116 10/1/08 1st $10,774 0.143% 0.100% 0.14075% Fee Simple
51322 $1,627,102 117 11/1/08 1st $10,848 0.143% 0.100% 0.14075% Fee Simple
51323 $551,243 117 11/1/08 1st $3,997 0.143% 0.100% 0.14075% Fee Simple
51324 $488,620 117 11/1/08 1st $3,733 0.143% 0.100% 0.14075% Fee Simple
51325 $993,186 117 11/1/08 1st $6,957 0.143% 0.100% 0.14075% Fee Simple
51328 $1,896,293 117 11/1/08 1st $12,961 0.143% 0.100% 0.14075% Fee Simple
51329 $1,995,966 117 11/1/08 1st $13,474 0.143% 0.100% 0.14075% Fee Simple
51334 $2,285,532 117 11/1/08 1st $15,622 0.143% 0.100% 0.14075% Fee Simple
51336 $748,537 117 11/1/08 1st $5,116 0.143% 0.100% 0.14075% Fee Simple
51338 $1,496,874 117 11/1/08 1st $9,980 0.143% 0.100% 0.14075% Fee Simple
51339 $506,386 117 11/1/08 1st $3,672 0.143% 0.100% 0.14075% Fee Simple
51340 $486,562 117 11/1/08 1st $3,342 0.143% 0.100% 0.14075% Fee Simple
51341 $735,655 117 11/1/08 1st $5,334 0.143% 0.100% 0.14075% Fee Simple
51342 $486,449 117 11/1/08 1st $3,527 0.143% 0.100% 0.14075% Fee Simple
51343 $636,273 117 11/1/08 1st $4,371 0.143% 0.100% 0.14075% Fee Simple
51346 $3,100,264 175 9/1/13 1st $28,535 0.143% 0.100% 0.14075% Fee Simple
51347 $542,712 116 10/1/08 1st $3,804 0.143% 0.100% 0.14075% Fee Simple
51348 $2,245,311 117 11/1/08 1st $14,969 0.143% 0.100% 0.14075% Fee Simple
51349 $2,295,807 117 11/1/08 1st $16,082 0.143% 0.100% 0.14075% Fee Simple
51351 $2,794,353 117 11/1/08 1st $18,864 0.143% 0.100% 0.14075% Fee Simple
51353 $418,853 117 11/1/08 1st $3,242 0.143% 0.100% 0.14075% Fee Simple
51354 $2,195,416 117 11/1/08 1st $14,637 0.143% 0.100% 0.14075% Fee Simple
51355 $947,055 117 11/1/08 1st $6,943 0.143% 0.100% 0.14075% Fee Simple
51356 $964,416 117 11/1/08 1st $7,004 0.143% 0.100% 0.14075% Fee Simple
51357 $1,157,583 117 11/1/08 1st $7,718 0.143% 0.100% 0.14075% Fee Simple
51358 $2,465,181 117 11/1/08 1st $16,850 0.143% 0.100% 0.14075% Fee Simple
51365 $1,214,168 117 11/1/08 1st $8,843 0.143% 0.100% 0.14075% Fee Simple
51366 $7,984,393 117 11/1/08 1st $54,574 0.143% 0.100% 0.14075% Fee Simple
51367 $2,595,890 117 11/1/08 1st $19,078 0.143% 0.100% 0.14075% Fee Simple
51368 $1,492,534 117 11/1/08 1st $12,157 0.143% 0.100% 0.14075% Fee Simple
51371 $573,995 117 11/1/08 1st $4,080 0.143% 0.100% 0.14075% Fee Simple
51372 $1,198,715 118 12/1/08 1st $8,391 0.143% 0.100% 0.14075% Fee Simple
51373 $943,937 118 12/1/08 1st $6,511 0.143% 0.100% 0.14075% Fee Simple
51376 $1,122,805 117 11/1/08 1st $7,674 0.143% 0.100% 0.14075% Fee Simple
51377 $1,496,874 117 11/1/08 1st $9,980 0.143% 0.100% 0.14075% Fee Simple
51378 $845,754 118 12/1/08 1st $6,820 0.143% 0.100% 0.14075% Fee Simple
51380 $733,740 118 12/1/08 1st $5,612 0.143% 0.100% 0.14075% Fee Simple
51381 $861,687 118 12/1/08 1st $6,254 0.143% 0.100% 0.14075% Fee Simple
51382 $1,148,707 118 12/1/08 1st $7,923 0.143% 0.100% 0.14075% Fee Simple
51383 $40,661,316 118 12/1/08 1st $294,397 0.093% 0.050% 0.09075% Fee Simple
51385 $18,169,482 119 1/1/09 1st $124,032 0.093% 0.050% 0.09075% Fee Simple
51386 $43,974,545 119 1/1/09 1st $300,187 0.093% 0.050% 0.09075% Fee Simple
51387 $2,472,771 118 12/1/08 1st $18,161 0.143% 0.100% 0.14075% Fee Simple
51388 $1,572,109 118 12/1/08 1st $11,721 0.143% 0.100% 0.14075% Fee Simple
51390 $861,689 118 12/1/08 1st $6,257 0.143% 0.100% 0.14075% Fee Simple
51395 $1,497,290 118 12/1/08 1st $11,232 0.143% 0.100% 0.14075% Fee Simple
51396 $499,550 118 12/1/08 1st $3,669 0.143% 0.100% 0.14075% Fee Simple
51397 $998,286 118 12/1/08 1st $7,636 0.143% 0.100% 0.14075% Fee Simple
51398 $549,532 118 12/1/08 1st $4,093 0.143% 0.100% 0.14075% Fee Simple
51399 $559,079 118 12/1/08 1st $4,341 0.143% 0.100% 0.14075% Fee Simple
51400 $504,570 118 12/1/08 1st $3,758 0.143% 0.100% 0.14075% Fee Simple
51401 $4,994,304 118 12/1/08 1st $34,313 0.143% 0.100% 0.14075% Fee Simple
51402 $999,086 118 12/1/08 1st $7,310 0.143% 0.100% 0.14075% Fee Simple
51413 $711,920 119 1/1/09 1st $5,535 0.143% 0.100% 0.14075% Fee Simple
51415 $434,846 119 1/1/09 1st $3,376 0.143% 0.100% 0.14075% Fee Simple
51419 $415,838 119 1/1/09 1st $3,162 0.143% 0.100% 0.14075% Fee Simple
51423 $6,742,590 118 12/1/08 1st $46,851 0.143% 0.100% 0.14075% Fee Simple
51425 $799,280 119 1/1/09 1st $5,990 0.143% 0.100% 0.14075% Fee Simple
51426 $1,027,060 119 1/1/09 1st $7,629 0.143% 0.100% 0.14075% Fee Simple
51428 $40,315,331 119 1/1/09 1st $307,448 0.093% 0.050% 0.09075% Fee Simple
51429 $55,402,022 119 1/1/09 1st $421,411 0.093% 0.050% 0.09075% Fee Simple
51434 $999,575 119 1/1/09 1st $7,439 0.143% 0.100% 0.14075% Fee Simple
51435 $589,735 119 1/1/09 1st $4,329 0.143% 0.100% 0.14075% Fee Simple
51442 $3,347,984 119 1/1/09 1st $22,570 0.143% 0.100% 0.14075% Fee Simple
<CAPTION>
TOTAL ORIGINAL
SF/UNITS/ MEASUREMENT AMORTIZATION
LOAN NUMBER CROSSED PROPERTY TYPE ROOMS/BEDS UNIT (MONTHS)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
50099 No Multifamily 102 Units 360
50121 No Office 57,299 SF 360
50148 No Retail 291,175 SF 360
50166 No Multifamily 400 Units 360
50167 No Multifamily 354 Units 360
50207 No Retail 62,495 SF 360
50312 No Health Care 115 Units 300
50319 Yes(7) Franchise Restaurant 14,932 SF 240
50322 Yes(7) Franchise Restaurant 9,278 SF 240
50331 No Multifamily 81 Units 360
50336 No Multifamily 96 Units 360
50391 No Retail 146,087 SF 300
50499 No Retail 35,869 SF 360
50509 No Multifamily 40 Units 360
50563 No Multifamily 92 Units 353
50648 No Multifamily 192 Units 360
50668 No Multifamily 105 Units 360
50695 No Retail 462,481 SF 371
50776 No Multifamily 140 Units 360
50788 No Multifamily 55 Units 360
50825 No Industrial 506,115 SF 360
50828 No Health Care 250 Units 300
50852 No Multifamily 128 Units 360
50853 No Multifamily 67 Units 360
50883 No Retail 182,880 SF 360
50888 No Multifamily 120 Units 360
50894 No Multifamily 90 Units 360
50902 No Industrial 42,901 SF 360
50904 No Multifamily 54 Units 300
50912 Yes(4) Health Care 58 Beds 300
50913 Yes(4) Health Care 98 Beds 300
50914 Yes(4) Health Care 111 Beds 300
50915 Yes(4) Health Care 93 Beds 300
50929 No Industrial 62,315 SF 300
50930 No Industrial 111,528 SF 240
50933 No Industrial 318,802 SF 300
50935 No Multifamily 104 Units 360
50937 No Multifamily 64 Units 300
50941 No Retail 98,981 SF 360
50942 No Retail 24,049 SF 360
50960 No Multifamily 40 Units 360
50969 No Multifamily 96 Units 360
50975 No Retail 78,910 SF 360
50979 No Marina 246 Units 300
50986 No Multifamily 108 Units 360
50990 No Retail 291,243 SF 360
50993 No Mobile Home 183 Pads 180
50994 No Mobile Home 273 Pads 180
50999 No Office 50,328 SF 300
51001 No Retail 41,986 SF 360
51004 No Multifamily 180 Units 360
51006 No Hotel 244 Rooms 300
51007 No Office 179,951 SF 300
51008 No Retail 200,068 SF 360
51009 No Multifamily 24 Units 360
51010 No Retail 112,003 SF 360
51012 Yes(5) Multifamily 90 Units 360
51013 No Industrial 88,215 SF 240
51014 No Multifamily 100 Units 360
51015 No Health Care 52 Units 300
51016 No Office 52,564 SF 360
51018 No Retail 127,981 SF 360
51023 No Multifamily 21 Units 360
51025 No Retail 110,718 SF 360
51026 No Office 19,500 SF 60
51027 No Multifamily 52 Units 360
51028 No Multifamily 208 Units 360
51029 No Industrial 566,564 SF 360
51033 No Multifamily 75 Units 360
51034 No Multifamily 68 Units 360
51035 No Multifamily 60 Units 360
51036 No Multifamily 25 Units 360
51038 No Multifamily 45 Units 360
51039 No Retail 53,245 SF 300
51041 No Multifamily 288 Units 360
51042 No Multifamily 45 Units 300
51043 No Multifamily 216 Units 360
51045 No Retail 81,334 SF 360
51046 No Multifamily 188 Units 360
51048 No Multifamily 140 Units 300
51053 No Multifamily 75 Units 360
51055 No Multifamily 107 Units 360
51056 No Multifamily 276 Units 360
51058 No Retail 66,737 SF 300
51060 No Hotel 97 Rooms 300
51061 No Retail 48,700 SF 300
51065 No Multifamily 118 Units 240
51066 No Multifamily 130 Units 300
51068 No Retail 80,599 SF 240
51069 No Office 81,742 SF 300
51072 No Retail 4,997 SF 240
51073 No Retail 3,060 SF 240
51074 No Retail 60,630 SF 360
51075 No Multifamily 96 Units 360
51076 No Multifamily 47 Units 360
51077 No Multifamily 147 Units 360
51079 No Retail 33,386 SF 360
51080 No Office 26,417 SF 360
51081 No Retail 47,108 SF 360
51086 No Multifamily 88 Units 300
51087 No Retail 31,731 SF 360
51090 No Retail 47,007 SF 300
51092 No Office 44,295 SF 360
51093 No Multifamily 52 Units 360
51094 No Office 84,382 SF 360
51096 No Multifamily 105 Units 360
51101 No Multifamily 190 Units 360
51103 No Industrial 47,660 SF 360
51104 No Multifamily 96 Units 360
51105 No Mini Storage 39,524 SF 300
51106 No Retail 113,214 SF 360
51107 No Retail 257,904 SF 360
51109 No Industrial 341,840 SF 306
51111 No Office 48,687 SF 360
51115 No Retail 37,839 SF 360
51116 No Retail 22,137 SF 360
51117 No Retail 9,500 SF 360
51118 No Retail 56,864 SF 360
51119 No Retail 10,908 SF 300
51120 No Industrial 47,815 SF 300
51121 No Hotel 501 Rooms 282
51122 No Hotel 81 Rooms 300
51123 No Multifamily 10 Units 360
51124 No Multifamily 13 Units 360
51125 No Retail 14,050 SF 360
51127 No Multifamily 216 Units 360
51129 No Industrial 133,284 SF 300
51130 No Office 56,000 SF 180
51131 No Office 448,982 SF 360
51132 Yes(2) Retail 28,209 SF 300
51134 No Retail 27,350 SF 360
51135 Yes(5) Multifamily 109 Units 360
51136 Yes(5) Mobile Home 182 Pads 360
51137 No Office 36,817 SF 252
51138 No Industrial 88,896 SF 360
51139 Yes(2) Retail 35,510 SF 300
51143 No Mobile Home 257 Pads 360
51145 No Mini Storage 89,446 SF 360
51146 No Retail 37,000 SF 360
51147 No Retail 58,024 SF 360
51148 No Health Care 44 Beds 300
51149 No Health Care 75 Beds 300
51150 No Health Care 178 Beds 300
51151 No Retail 27,334 SF 300
51156 No Hotel 82 Rooms 300
51157 No Hotel 46 Rooms 300
51158 No Office 48,974 SF 360
51159 No Mini Storage 56,260 SF 240
51160 No Multifamily 272 Units 360
51161 No Retail 2,118 SF 300
51165 No Office 56,249 SF 300
51166 No Office 12,188 SF 300
51167 No Office 32,482 SF 360
51169 No Multifamily 66 Units 360
51170 No Industrial 116,500 SF 360
51172 No Office 8,335 SF 360
51173 No Multifamily 73 Units 300
51174 No Office 8,566 SF 360
51175 Yes(5) Mobile Home 161 Pads 360
51176 Yes(5) Mobile Home 165 Pads 360
51177 Yes(5) Mobile Home 168 Pads 360
51178 Yes(5) Mobile Home 102 Pads 360
51179 Yes(5) Mobile Home 90 Pads 360
51180 Yes(5) Mobile Home 135 Pads 360
51181 Yes(5) Mobile Home 82 Pads 360
51182 Yes(5) Mobile Home 89 Pads 360
51183 Yes(5) Mobile Home 75 Pads 360
51184 Yes(5) Mobile Home 31 Pads 360
51185 Yes(5) Multifamily 35 Units 360
51188 No Retail 2,736 SF 360
51189 No Multifamily 28 Units 360
51190 No Multifamily 42 Units 360
51192 No Multifamily 260 Units 360
51196 No Retail 11,636 SF 360
51197 No Retail 40,000 SF 360
51198 No Multifamily 60 Units 360
51199 No Retail 4,604 SF 360
51201 No Retail 21,282 SF 360
51202 No Multifamily 36 Units 300
51203 No Mobile Home 52 Pads 300
51204 No Mobile Home 41 Pads 300
51205 No Industrial 81,225 SF 300
51207 No Retail 12,870 SF 360
51209 No Mobile Home 248 Pads 360
51210 No Retail 11,370 SF 180
51211 No Office 18,148 SF 360
51212 No Mobile Home 159 Pads 360
51213 No Industrial 60,800 SF 300
51215 No Multifamily 130 Units 360
51217 No Retail 30,531 SF 300
51219 No Retail 134,031 SF 360
51220 No Retail 37,000 SF 360
51221 No Multifamily 60 Units 360
51224 No Multifamily 40 Units 300
51227 No Industrial 39,156 SF 180
51228 No Retail 8,707 SF 360
51230 No Mini Storage 67,100 SF 180
51231 No Mini Storage 21,000 SF 300
51233 No Retail 10,215 SF 360
51235 No Office 20,492 SF 360
51236 No Office 10,992 SF 360
51237 No Industrial 18,430 SF 360
51238 No Office 25,805 SF 180
51239 No Retail 55,086 SF 360
51240 No Office 6,020 SF 360
51241 No Office 12,388 SF 360
51242 No Retail 8,361 SF 360
51243 No Office 28,639 SF 360
51244 No Office 97,563 SF 360
51245 No Multifamily 74 Units 360
51246 No Multifamily 51 Units 360
51248 No Multifamily 34 Units 360
51249 No Office 36,243 SF 300
51250 No Industrial 57,064 SF 360
51251 No Multifamily 53 Units 360
51253 No Retail 30,988 SF 360
51254 No Office 29,705 SF 360
51255 No Office 34,972 SF 360
51256 No Industrial 55,615 SF 360
51258 No Industrial 38,500 SF 360
51259 No Office 19,247 SF 360
51261 No Multifamily 72 Units 360
51262 No Retail 12,346 SF 360
51263 No Retail 29,875 SF 360
51264 No Retail 33,580 SF 360
51265 No Industrial 34,007 SF 360
51266 No Retail 22,823 SF 360
51267 No Retail 27,188 SF 360
51268 No Industrial 29,040 SF 360
51269 No Industrial 20,460 SF 360
51271 No Multifamily 39 Units 360
51273 No Office 15,000 SF 360
51274 No Office 5,600 SF 360
51275 No Office 16,816 SF 360
51277 No Industrial 15,600 SF 360
51281 No Multifamily 121 Units 360
51282 No Retail 12,000 SF 360
51283 No Retail 8,092 SF 360
51284 No Retail 16,436 SF 300
51285 No Office 21,159 SF 360
51286 No Retail 218,708 SF 360
51287 No Multifamily 204 Units 300
51288 No Retail 14,150 SF 360
51289 No Multifamily 246 Units 360
51291 No Retail 32,689 SF 360
51293 No Office 13,263 SF 360
51294 No Multifamily 58 Units 360
51295 No Office 30,793 SF 360
51296 No Office 17,435 SF 360
51297 No Multifamily 44 Units 360
51298 No Retail 19,213 SF 360
51299 No Multifamily 41 Units 360
51300 No Multifamily 12 Units 300
51301 No Multifamily 25 Units 300
51302 No Multifamily 34 Units 300
51303 No Multifamily 70 Units 360
51304 No Retail 10,490 SF 360
51308 No Retail 8,982 SF 360
51309 No Office 25,133 SF 360
51310 No Industrial 44,360 SF 360
51311 No Office 31,348 SF 360
51312 No Office 26,373 SF 360
51313 No Office 10,838 SF 360
51316 No Multifamily 60 Units 360
51317 No Retail 9,425 SF 360
51318 No Multifamily 20 Units 300
51319 No Multifamily 45 Units 300
51320 No Multifamily 30 Units 360
51322 No Multifamily 39 Units 360
51323 No Multifamily 19 Units 300
51324 No Retail 14,000 SF 300
51325 No Multifamily 27 Units 360
51328 No Retail 29,823 SF 360
51329 No Office 34,184 SF 360
51334 No Industrial 83,900 SF 360
51336 No Multifamily 6 Units 360
51338 No Office 9,352 SF 360
51339 No Multifamily 20 Units 300
51340 No Industrial 18,430 SF 360
51341 No Multifamily 29 Units 300
51342 No Multifamily 20 Units 300
51343 No Multifamily 22 Units 360
51346 No Industrial 49,294 SF 180
51347 No Multifamily 23 Units 360
51348 No Multifamily 33 Units 360
51349 No Retail 29,117 SF 360
51351 No Industrial 53,296 SF 360
51353 No Retail 9,324 SF 300
51354 No Multifamily 71 Units 360
51355 No Industrial 13,780 SF 300
51356 No Mini Storage 24,600 SF 360
51357 No Multifamily 23 Units 360
51358 No Industrial 73,860 SF 360
51365 No Industrial 35,624 SF 300
51366 No Retail 111,830 SF 360
51367 No Office 29,876 SF 360
51368 No Office 21,600 SF 240
51371 No Office 8,567 SF 360
51372 No Multifamily 47 Units 360
51373 No Office 19,124 SF 360
51376 No Office 18,221 SF 360
51377 No Mobile Home 98 Pads 360
51378 No Retail 23,240 SF 300
51380 Yes(6) Mini Storage 46,277 SF 300
51381 Yes(6) Mini Storage 29,690 SF 360
51382 No Retail 18,925 SF 360
51383 No Industrial 889,548 SF 360
51385 Yes(1) Multifamily 400 Units 360
51386 Yes(1) Multifamily 984 Units 360
51387 No Industrial 25,200 SF 360
51388 No Mobile Home 137 Pads 300
51390 No Multifamily 53 Units 360
51395 No Retail 85,495 SF 300
51396 No Industrial 8,610 SF 360
51397 No Retail 14,573 SF 300
51398 No Mobile Home 34 Pads 360
51399 No Industrial 19,935 SF 300
51400 No Industrial 4,065 SF 360
51401 No Retail 21,633 SF 360
51402 No Office 16,438 SF 360
51413 No Retail 8,118 SF 300
51415 No Retail 6,333 SF 360
51419 No Multifamily 13 Units 360
51423 No Mini Storage 79,066 SF 360
51425 No Multifamily 75 Units 300
51426 No Mini Storage 39,055 SF 360
51428 Yes(3) Hotel 756 Rooms 300
51429 Yes(3) Hotel 796 Rooms 300
51434 No Office 20,582 SF 360
51435 No Retail 7,000 SF 360
51442 No Multifamily 62 Units 360
</TABLE>
- ----------
* Loan Number 50695 The Summit Shopping Center is a Hyper-Amortization Loan.
The Maturity Date reflects the Anticipated Repayment Date. An annual Excess
Sub-Servicing strip of 0.737000% is received by SouthTrust Bank, N.A.
<PAGE>
SCHEDULE II
SUB-SERVICING AGREEMENTS IN EFFECT
AS OF THE CLOSING DATE
NATIONSBANK, N.A. SUB-SERVICING AGREEMENT
Agreement (with respect to each of the Subservicers listed below)
- -----------------------------------------------------------------
Amended and Restated Master Subservicing Agreement for Securitization
Transactions, dated as of March 25, 1998, among NationsBank, N.A., Bankers
Mutual, a division of Franchise Mortgage Acceptance Company (successor in
interest to Bankers Mutual Mortgage, Inc.), Berkshire Mortgage Finance
Corporation, First Security Bank, N.A., L.J. Melody & Company, Patrician
Financial Company Limited Partnership and WMF Washington Mortgage Corp.
(successor in interest to Washington Mortgage Financial Group, Ltd.), as
supplemented by Subservicer Addition Agreements dated September 25, 1998
executed by ARCS Commercial Mortgage Co., L.P., a California limited
partnership, and Bank of America NT&SA and as supplemented by the Confirmation
thereto dated February 23, 1999.
Subservicers
- ------------
ARCS Commercial Mortgage Co., L.P., a California limited partnership
Bank of America NT&SA
Berkshire Mortgage Finance Corporation
First Security Bank, N.A.
L.J. Melody & Company
Patrician Financial Company Limited Partnership
WMF Washington Mortgage Corp.
<PAGE>
SCHEDULE III
SCHEDULE OF CERTAIN INSURANCE EXCEPTIONS
Loan
Number Property Name Description of Exception
- ------- ----------------------- ------------------------------------
50828 Community Programs, Inc. 80% co-insurance limit applies for
business interruption insurance.
<PAGE>
SCHEDULE IV
CERTAIN ENVIRONMENTAL MATTERS
A 1998 environmental site assessment conducted in connection with the Mortgage
Loan secured by the Calabasas Retail Center recommended additional environmental
assessment (a "Phase II") to determine whether the prior use of the Mortgaged
Property as a gasoline station may have resulted in the release of hazardous
materials onto or under the Mortgaged Property. However, in 1997, a Phase II
investigation was performed, after which a Closure Letter was issued by the Los
Angeles Department of Public Works. Therefore, the recommendation of an
additional Phase II investigation has not been and is not expected to be
implemented.
In the case of the Mortgage Loan secured by Naylor Road Shopping Center, the
environmental assessment revealed the presence of an underground storage tank no
longer in use and recommended the removal of the tank and in another that an
investigation be performed to determine whether a vent/fill pipe found on the
subject property is associated with an underground storage tank or former
aboveground storage tank which may be/may have been on-site.
<PAGE>
SCHEDULE V
SCHEDULE OF MORTGAGE LOANS PERMITTING CERTAIN RELEASES
Loan
Number Property Name Description of Permitted Release
- ------ --------------------- ----------------------------------------
51383 Bay Bridge Industrial Release of portion of Mortgaged Property
permitted upon payment of $1,000,000 of
balance and certain other specified
conditions.
51428 RFS Hotel Notes A & B Release of portion of Mortgaged Property
51429 permitted in conjunction with a
substitution, subject to satisfaction of
specified conditions including rating
agency confirmation.
<PAGE>
SCHEDULE VI
SCHEDULE OF MORTGAGE LOANS PERMITTING
FUTURE SUBORDINATE LIENS ON MORTGAGED PROPERTIES
Loan
Number Property Name Description of Permitted Lien
- ------ ---------------------- ----------------------------------------
50695 Summit Shopping Center Subordinate financing permitted subject
to certain conditions, including
standstill requirement.
<PAGE>
SCHEDULE VII
SCHEDULE OF EXCEPTIONS FROM HEALTH CARE LOAN DOCUMENT PROVISIONS
Loan
Number Property Name Description of Exception
- ------- ------------------------ ---------------------------------------
50828 Community Programs, Inc. Loan documents require notice to lender
before an amendment of licenses.
51150 Pilgrim Manor of Bossier Loan documents silent regarding
Nursing Home change of bed capacity.
<PAGE>
SCHEDULE VIII
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
[NONE]
[CADWALADER LETTERHEAD]
February 23, 1999
To the Persons Named on
Schedule 1 Hereto:
Re: NationsLink Funding Corporation,
Commercial Mortgage Pass-Through Certificates, Series 1999-1
------------------------------------------------------------
Ladies and Gentlemen:
We are rendering this opinion letter pursuant to Section 6(b) of that
certain Underwriting Agreement, dated as of February 17, 1999 (the "Underwriting
Agreement"), by and between NationsLink Funding Corporation ("NationsLink") and
NationsBanc Montgomery Securities LLC ("NationsBanc Montgomery"), as underwriter
(in such capacity, the "Underwriter"), and Section 3(e) of that certain Private
Placement Agency Agreement, dated as of February 17, 1999 (the "Placement
Agreement"), by and between NationsLink and NationsBanc Montgomery, as placement
agent (in such capacity, the "Placement Agent"). We have acted as special
counsel to NationsLink, the Underwriter and the Placement Agent in connection
with (i) the issuance of NationsLink's Commercial Mortgage Pass-Through
Certificates, Series 1999-1 (the "Certificates"), consisting of fourteen
classes: the Class A-1 Certificates, the Class A-2 Certificates, the Class X
Certificates, the Class B Certificates, the Class C Certificates, the Class D
Certificates, the Class E Certificates, the Class F Certificates, the Class G
Certificates, the Class H Certificates, the Class J Certificates, the Class K
Certificates, the Class R-I Certificates and the Class R-II Certificates; (ii)
the sale by NationsLink and the purchase by the Underwriter pursuant to the
Underwriting Agreement of the Class A-1, the Class A-2, the Class X, the Class
B, the Class C, the Class D and the Class E Certificates (collectively, the
"Publicly Offered Certificates"); and (iii) the sale by NationsLink through the
Placement Agent pursuant to the Placement Agreement of the Class F, the Class G,
the Class H, the Class J and the Class K Certificates (collectively, the
"Privately Placed Certificates").
The Certificates are being issued pursuant to that certain Pooling and
Servicing Agreement, dated as of February 1, 1999 (the "Pooling and Servicing
Agreement"), by and among NationsLink, as depositor, NationsBank, N.A.
("NationsBank"), as mortgage loan seller, Banc One Mortgage Capital Markets,
LLC, as master servicer and as special servicer, and Norwest Bank Minnesota,
National Association, as trustee (in such capacity, the "Trustee") and as REMIC
Administrator (in such capacity, the "REMIC Administrator"). Capitalized terms
used and not otherwise defined herein have the meanings given to them in the
Pooling and Servicing Agreement. The Certificates will evidence beneficial
ownership interests in a trust fund (the "Trust Fund") the assets of which will
consist of a pool of mortgage loans identified on Schedule I to the Pooling and
Servicing Agreement, together with certain related assets.
In rendering the opinion set forth below, we have examined and relied
upon originals, copies or specimens, certified or otherwise identified to our
satisfaction, of the Pooling and Servicing Agreement, the Prospectus Supplement
and Prospectus, each dated February 17, 1999 and relating to the Publicly
Offered Certificates, the Private Placement Memorandum dated February 17, 1999
relating to the Privately Placed Certificates, specimen forms of the Publicly
Offered Certificates and the Privately Placed Certificates, and such
certificates, corporate records and other documents, agreements, opinions and
instruments, including, among other things, those delivered at the closing of
the purchase and sale of the Publicly Offered Certificates and the Privately
Placed Certificates, as we have deemed necessary as a basis for such opinion
hereinafter expressed. In connection with such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents, agreements and
instruments submitted to us as originals, the conformity to original documents,
agreements and instruments of all documents, agreements and instruments
submitted to us as copies or specimens, the conformity of the text of each
document filed with the Securities and Exchange Commission through the EDGAR
system to the printed document reviewed by us, the authenticity of the originals
of such documents, agreements and instruments submitted to us as copies or
specimens, and the accuracy of the matters set forth in the documents,
agreements and instruments we reviewed. As to any facts material to such opinion
that were not known to us, we have relied upon statements, certificates and
representations of officers and other representatives of NationsBank,
NationsLink, the Trustee, the REMIC Administrator and NationsBanc Montgomery and
their officers and other representatives, and of public officials.
In rendering the opinion below, we do not express any opinion
concerning the laws of any jurisdiction other than the substantive federal laws
of the United States of America.
Based upon and subject to the foregoing, we are of the opinion that,
assuming compliance with all relevant provisions of the Pooling and Servicing
Agreement as in effect on the Closing Date, (a) REMIC I and REMIC II will each
qualify for treatment for federal income tax purposes as a "real estate mortgage
investment conduit", as defined in Section 860D of the Code; (b) the Class A-1,
Class A-2, Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class
H, Class J and Class K Certificates will constitute "regular interests" in REMIC
II and the Class R-II Certificates will constitute the sole class of "residual
interest" in REMIC II within the meaning of the Code; and (c) the Class LA-1
Uncertificated Interest, Class LA-2 Uncertificated Interest, Class LB
Uncertificated Interest, Class LC Uncertificated Interest, Class LD
Uncertificated Interest, Class LE Uncertificated Interest, Class LF
Uncertificated Interest, Class LG Uncertificated Interest, Class LH
Uncertificated Interest, Class LJ Uncertificated Interest and Class LK
Uncertificated Interest will constitute "regular interests" in REMIC I and the
Class R-I Certificates will constitute the sole class of "residual interests" in
REMIC I within the meaning of the Code.
We are furnishing this letter to you solely for your benefit in
connection with the transactions referred to herein. This letter is not to be
relied upon, used, circulated, quoted or otherwise referred to by any other
person or for any other purpose without our prior written consent.
Very truly yours,
/s/ Cadwalader, Wickersham & Taft
<PAGE>
SCHEDULE 1
NationsBanc Montgomery Securities LLC
100 North Tryon Street
Charlotte, North Carolina 28255
NationsLink Funding Corporation
100 North Tryon Street
Charlotte, North Carolina 28255
NationsBank, N.A.
100 North Tryon Street
Charlotte, North Carolina 28255
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Standard & Poor's Ratings Services,
a division of the McGraw-Hill Companies, Inc.
25 Broadway
New York, New York 10004
Duff & Phelps Credit Rating Co.
55 East Monroe Street
Chicago, Illinois 60603
Banc One Mortgage Capital Markets, LLC
in its capacity as Master Servicer and as Special Servicer
1717 Main Street, 12th Floor
Dallas, Texas 75201
Norwest Bank Minnesota, National Association
in its capacity as Trustee and REMIC Administrator
3 New York Plaza, 15th Floor
New York, New York 10004
